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Prof. H.C. Adaas
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ANNALS
OP
THE COMEESS OF THE UNITED STATES.
SEVENTH CONGRESS.
J THE
DEBATES AND PROCEEDINGS
iir TBI
CONGRESS OF THE UNITED STATES;
WITH
AN APPENDIX,
coHTAiiriire
IMPORTANT STATE PAPERS AND PUBLIC DOCUMENTS,
AVD ALL
THE LAWS OF A PUBLIC NATURE;
WITH A COPIOUS INDEX.
SEVENTH CONGRESS.
COMPRISING THE PERIOD FROM DECEMBER 7, 1801, TO MARCH 3, 1803,
INCLUSIVE.
COMPILED FROM AUTHENTIC MATERIALSi
WASHINGTON:
PRINTED AND PUBLISHED BY GALES AND SSATOK.
1 8 5 i .
,2.
PROCEEDINGS AND DEBATES
OP
THE SENATE OP THE UNITED STATES,
AT THE FIRST SESSION OF THE SEVENTH CONGRESS, BEGUN AT THE CITY OF
WASHINGTON, DECEMBER 7, 1801.
Monday, December 7, 1801.
The first session of the Seventh Congress of
the United States commenced this day, conform-
ably to the Constitution, and the Senate assembled
at the Capitol in the City of Washington.
PB£8ENT:
Theodore Foster, from Rhode Island ;
Nathaniel Chipman. from Vermont;
William Hill Wells and Samuel White,
from Delaware;
John E. Howard, from Maryland ;
Stevens Thompson Mason and Wilson
Caiiy Nicholas, from Virginia ;
Abraham Baldwin, from Greorgia;
Joseph Anderson and William CocKE^from
Tennessee.
Stephen R. Bradley, appointed a Senator by
the State of Vermont, lor ike remainder of the
term for which their late Senator, Elijah Paine,
was appointed ; John Breckenridqe, appointed a
Senator by the State of Kentucky ; Christopher
Ellery, appointed a Senator oy the State of
Rhode Island, for the remainder of the term for
which their late Senator, Ra^r Qreene, was ap-
pointed; James Jackson, appointed a Senator by
the State of Georgia ; George Logan, appointed
a Senator by the Executive of the State of Penn-
sylvania, in the place of their late Senator, Peter
Muhlen1)erg, resigned ; Simeon Olcott, appoint-
ed a Senator by flie State of New Hampshire, for
the remainder of the term for which their late
Senator, Samuel Livermore, was appointed; Uri-
ah Tracy, appointed a Senator by the State of
Connecticut: and Robert Wright, appointed a
Senator by the State of Maryland, severally pro-
duced their credentials, and took their seats in the
Senate.
The Vice President being absent, the Senate
proceeded to the dection of a President pro tem-
pore, as the Constitution provides; and Abraham
Baldwin was chosen.
The President administered the oath, as the
law prescribes, to Mr. Bradley. Mr. Brecken-
ridge, Mr. Ellery, Mr. Jackson, Mr. Olcott,
Mr. Tracy, and Mr. Wright, and the affirmation
to Mr. Logan.
Ordered, That the Secretary wait on the Pres-
ident of the United States and acquaint him that
a quorum of the Senate is assembled, and that, in I
j the absence of the Vice President, they have
elected Abraham Baldwin President of the Sen-
ate^ro tempore.
Ordered, That the Secretary acquaint the
I House of Representatives that a quorum of the
{ Senate is assembled and ready to proceed to busi-
ness, and that, in the absence of the Vice Presi-
dent, they have elected Abraham Baldwin Pres-
ident of the Senate pro tempore,
A message from the House of Representatives
informed the Senate that a quorum of the House
is assembled, and have elected Na'i^aniel Macon
their Speaker, and are ready to proceed to business.
Ordered, That Messrs. Anderson and Jack-
son be a committee on the part of the Senate, to-
gether with such committee as the House of
Representatives may appoint on their part, to
wait on the President of the United States and
notify him that a quorum of the two Houses is
assembled, and ready to receive an v communica-
tions that ne may be pleased to maxe to them.
A message from the House of Representatives
informed the Senate that the House agree to the
resolution of the Senate for the appointment of a
joint committee to wait on the President of the
United States, and have 'appointed a committee
on their part.
Resolved, That a committee be appointed to
join such j^entlemen as shall be appointed by the
House of Representatives, to take into considera-
tion a statement made this day by the Secretary
of the Senate, respecting books and maps pur-
chased in consequence of an act of Congress, pass-
ed 24th April, 1800, and to make report of their
opinion respecting the future arrangement of said
books and maps; and that Messrs. Tracy and
Nicholas be the committee on the part of the
Senate.
Mr. Anderson reported, from the joint com-
mittee, that they had waited on the President of
the United States and acquainted him that a quo-
rum of both Houses is assembled, and that the
President of the United Stetes informed the com-
mittee that he would make a communication to
them by message to-morrow.
Tuesday, December 8.
Jonathan Dayton and Aaron Ogden, from
the State of New Jersey, and Jesse Franklin
281947
11
HISTORY OF CONGRESS.
12
Senate.
President's Message.
December, 1801.
from the State of North Cardlina, severally at-
tended.
Resolved, That two Chaplains, of different de-
nominations, be appointed to CoDgress for the
present session, one by each House, who shall
interchange weekly.
A message from the House of Representatives
informed the Senate that the House concur in the
resolution of the Senate for the appointment of a
joint committee respecting the books and maps
purchased in pursuance of an act of Congress, of
the 24th of April, 1800, and have appointed a com-
mittee on their part. They agree to the resolution
of the Senate for the appointment of two Chap-
lains during the present session.
Resolved, That each Senator be supplied, during
the present session, with three such newspapers,
printed in any of the States, as he may choose,
provided that the same be furnished at the rate
usual for the annual charge of such papers.
PRESIDENT'S MESSAGE.
The following Letter and Message were re-
ceived from the President or the United
States, by Mr. Lewis, his Secretary :
Decsmbeb 8, 1801.
Sib : The circumstances under which we find ourr
selves at this place rendering inconvenient the mode
heretofore practised, of making by personal address the
first communications between the Legislative and Ex-
ecutive branches, I have adopted that by Message, as
used on all subsequent occasions through the session.
In doing this I have had principal regard to the conve-
nience of the Leg^lature, to the economy of their time,
to their relief from the embarrassment of immediate
answers, on subjects not yet fiilly before them, and to
the benefits thence resulting to the public affairs.
Trusting that a procedure founded in these motives
will meet their approbation, I beg leave, through you,
sir, to communicate the enclosed Message, with the
documents accompanying it, to the honorable the Sen-
ate, and pray you to accept, for yourself and them, the
homage of my high respect and consideration.
TH : JEFFERSON.
The Hon. the President of the Sshatb.
FeUotO'dtizena of the Senate,
and House of RepreaerUatives .*
It is a circumstance of sincere gratification to me
that, on meeting the great council of our nation, I am
able to announce to them, on grounds of reasonable
certainty, that the wars and troubles which for so ma-
ny years afflicted our sister nations, have at length
come to an end; and that the communications of peace
and commerce are once more opening among them.
Whilst we devoutiy return thanks to^the beneficent
Being who has been pleased to breathe into them the
spirit of condUation and forgiveness, we are bound,
vrith peculiar gratitude, to be thankful to Him that our
own peace has been preserved through so perilous a sea-
son, and ourselves permitted quieUyto cultivate the
earth, and to practice and improve those arts which tend
to increase our comforts. The assurances, indeed, of
friendly disposition, received from all the Powers with
whom we have principal relations, had inspired a con-
fidence that our peace with them would not have been
disturbed. But a cessation of irregularities which had
afiected the commerce of neutral nations, and of the ir-
ritations and injuries produced by them, cannot but add
to this confidence, and strengthens, at the same time,
the hope that vnrongs committed on unoffending friendsy
under a pressure of circumstances, will now be revieipved
with candor, and will be considered as founding just
claims of restribution for the past, and new assurances
for the future.
Among our Indian neighbors, also, a spirit of peace
and friendship generally prevails ; and I am happy to
inform you tiiat the continued efforts to intrc>duce
among them the implements and the practice of hus-
bandry, and of the household arts, have not been with-
out succesa; that they are becoming more and more sen-
sible of the superiority of this dependence for clothing
and subsistence, over the precarious resources of hunt-
ing and fishing ; and already we are able to announce
that, instead of that constant diminution of their num-
bers, produced by their wars and their wants, some of
them begin to experience an increase of population.
To this state of general peace v?ith which we have
been blessed, one only exception exists. Tripoli, the
least considerable of the Barbaiy States, had come for-
ward vrith demands unfounded either in right or in com-
pact, and had permitted itself to denounce war, on our
failure to comply before a given day. The style of the
demands admitted but one answer. I sent a small
squadron of frigates into the Mediterranean, with assur-
ances to that Power of our sincere desire to remain in
peace ; hut with orders to protect our commerce against
the threatened attack. The measure was seasonable
and salutary. The Bey had already declared war. His
cruisers were out. Two had arrived at Gibraltar. Our
commerce in the Mediterranean was blockaded, and
that of the Atlantic in peril. The arrival of our squad-
ron dispelled the danger. One of the Tripolitan cruis-
ers, having fallen in with and engaged the small schooner
Enterprize, commanded by Lieutenant Sterret, which
had gone as a tender to our larger vessels, was captured,
after a heavy slaughter of her men, without the loss of a
single one on our part. The bravery exhibited by our
citizens on that element will, I trust, be a testimony to
the world that it is not the want of that virtue which
makes us seek their peace, but a conscientious desire to
direct the energies of our nation to the multipUcation
of the human race, and not to its destruction. Unau-
thorized by the Constitution, without the sanction of
Congress, to go beyond the line of defence, the vessel,
being disabled from committing further hostiUties, was
liberated vrith its crew. The !< egislature will doubtless
consider whether, by authorizing measures of offence also,
they will place our force on an equal footing with that
of its adversaries. I communicate all material informa-
tion on this subject, that, in the exercise of this impor-
tant fimction confided by the Constitution to the Legis-
lature exclusively, their judgment may form itself on a
knowledge and consideration of every circumstance of
weight.
I vrish I could say that our situation with all the
other Barbary States was entirely satisfactory. Discov-
ering that some delays had taken place in the perform-
ance of certain artides stipulated by us, I thought it
my duty, by immediate measures for frdfilUng them, to
vindicate to ourselves the right of considering the ef>
feet of departure from stipulation on their side. From
the papers which will be laid before you, you will be
enabled to judge whether our treaties are regarded by
them as fixing at all the measure of their demands, or,
as guarding fitom the exercise of force our vessels with-
in their power ; and to consider how far it will be safe
and expedient to leave our affairs with them in their pres-
ent posture.
%
0 M^K
13
HISTORY OF CONGRESS.
14
December, 1801.
President's Message,
Senate .
I lay before yott the result of the census lately taken
of our inhabitants, to a conformity with which we are
now to reduce the ensuing ratio of representation and
taxation. You will perceive that the increase of num-
bers, during the last ten years, proceeding in geomet-
rical ratio, promises a duplicatipn in little more than
twenty-two years. We contemplate this rapid growth,
and the prospect it holds up to us, not with a view to
the injuries it may enable us to do to others in some
iiiture day, but to the settlement of the extensive country
Btill remaining vAcant within our limits, to the multipli-
cation of men susceptible of happiness, educated in the
love of order, habituated to self-government, and valu-
ing its blessings above all price.
Other circumstances, combined with the increase of
numbers, have produced an augmentation of revenue
arising from consumption, in a ratio far beyond that of
population alone ; and, though the changes in foreign
relations now takn;ig place, so desirably for the whole
world, may for a season affect this branch of revenue,
yet, weighing all probabilities of expense, as well as of
income, there is reasonable ground of confidence that we
may now safely dispense with ail the internal taxes —
comprehending excise, stamps, auctions, licenses, car-
riages, and refined sugars; to which the postage on
newspapers may be added, to focilitate the progpress of
information ; and that the remaining sources of revenue
will be sufficient to provide for the support of Govern-
ment, to pay the interest of the public debts, and to dis-
charge the principals within shorter periods than the
laws or the general expectation had contemplated.
War, indeed, and untoward events, may change this
prospect of things, and call for expenses which die im-
posts could not meet. But sound principles will not
justify our taxing the industry of our fellow-citizens to
accumulate treasure for wars to happen we know not
when, and which might not, perhaps, happen, but from
the temptations offered by that treasure.
These views, however, of reducing our burdens,
are formed on the expectation that a sensible, and at
the same time a salutary, reduction may take place in
our habitual expenditures. For this purpose those of the
civil government, the army, and navy, will need revisal.
When we consider that this Government is charged
with the external and mutual relations only of these
States ; that the States themselves have principal care
of our persons, our property, and our reputation, consti-
tuting the great field of human concerns, we may well
doubt whether our organization is not too complicated,
too expensive ; whether offices and officers have not been
multiplied unnecessarily, and sometimes injuriously to
the service they were meant to promote. I will cause to
be laid before you an essay towards a statement of those
who, under public employment of various kinds, draw mo-
ney from the Treasury, or from our citizens. Time has
not permitted a perfect enumeration, the ramifications of
office being too multiplied and remote to be completely
traced in a first trial. Among those who are dependent
on Executive discretion, I have begun the reduction of
what was deemed unnecessary. The expenses of di-
plomatic agency have been considerably diminished.
The inspectors of internal revenue, who were found
to obstruct the accountability of the institution, have
been diMontinued. Several agencies, created by £x-
cutive authority, on salaries fixed by that also, have
been suppressed, and should suggest the expediency of
regulating that power by law, so as to subject its exer-
cise to legislative inspection and sanction. Other re-
formations of the same kind will be pursued with that
caution which is requisite, in removing useless things,
not to injure what is retained. But the great mass of
public offices is established by law, and therefore by law
alone can be abolished. Should the Legislature think
it expedient to pass this roll in review, and try all its
parts by the test of public utility, they may be assured
of every aid and light which Executive information can
yield. Considering the genertl tendency to multiply
offices and dependencies, and to increase expense to
the ultimate term of burden which the citizen can
bear, it behooves us to avail ourselves of every occasion
which presents itself for taking off th« surcharge ; that
it never may be seen here that, after leaceing to labor the
smallest portion of its earnings on which it can subsist^
Government shall itself consume the whole residue of
what it was instituted to g^ard.
In our care too of the public contributions entrusted
to our direction, it would be prudent to multiply barriers
against their dissipation, by appropriating specific sums
to every specific purpose susceptible of definition ; by
disallowing all applications of money varying from the
appropriation in object, or transcending it in amount ;
by reducing the undefined field of contingencies, and
thereby circumscrilnng discretionary powers over mo-
ney ; and by bringing back to a single department all
accountabilities for money, where the examinations
mav be prompt, efficacious, and uniform.
An account of the receipts and expenditures of the
last year, as prepared by Uie Secretary of the Treasu-
ry, will, as usual, be laid before you. The success
which has attended the late sales of the public lands
shows that, with attention, they may be made an im-
portant source of receipt. Among the payments those
made in discharge of the prindpai and interest of the
national debt, will show that the public faith has been
exactly maintained. To these will be added an esti-
mate of appropriations necessary for the ensuing year.
This last will, of course, be affected by such modificap
tions of the system of expense as you shall think
proper to adopt.
A statement has been formed by the Secretaiy of
War, on mature consideration, of all the posts and
stations where garrisons will be expedient, and of the
number of men requisite for each garrison. The whole
amount is considerably short of file present Military
Establishment. For the surplus no particular use can
be pointed out For defence against invasion their
number is as nothing ; nor is it conceived needful or
safe that a standing army should be kept up in time of
peace, for that purpose. Uncertain as we must ever
be of the particular point in our circumference where
an enemy may choose to invade us, the only force
which can be ready at every point, and competent to
oppose them, is the body of neighboring citizens, as
formed into a militia. On these, collected fh>m the
parts most convenient, in numbers proportioned to the
invading force, it is best to rely, not only to meet the
first attack, but, if it threatens to be permanent, to
maintain the defence until regulars may be engaged to
relieve them. These considerations render it importp
ant that we should, at every session, continue to amend
the defects which from time to time show themselves in
the laws for regulating the militia, until they are suffi-
ciently perfect : nor should we now, or at any timOy
separate, until we can say that we have done every-
thing for the militia which we could do were an enemy
at our door.
The provision of military stores on hand will be laid
I before you, that you may judge of the additions still
requisite.
With respect to the extent to which our naval prepa*
15
HISTORY OF CONGRESS.
16
Senate.
PreaidenVs Meaaage,
Decemb£b, 1801 .
rations should be carried, some difference of opinion
may be expected to appear ; but just attention to the
circumstances of every part of the Union will doubt-
less reconcile all. A small force will probably continue
to be wanted for actual service in the Mediterranean.
Whatever annual sum beyond that you may think
proper to appropriate to naval preparations, would per-
haps be better employed in providing those articles
which may be kept without waste or consumption, and
be in readiness when any exigence calls them into use.
Progress has been made, as will appear by papers now
communicated, in providing materials for seventy-four
gun ships, as directed by laW.
How far Che authority given by the Legislature for
procuring and establishing sites for naval purposes, has
been pei^ctly understood and pursued in the execu-
tion, admits of some doubt. A statement of the ex-
penses Already incurred on that subject is now laid be-
fore you. I have, in certain cases, suspended or slack-
ened these expenditures, that the Legblature might
determine whether so many yards are necessary as have
been contemplated. The works at this place are among
those permitted to go on ; and five of the seven frigates
directed to be laid up, have been brought and laid up
here, where, besides the safety of their position, they
are under the eye of the Executive Administration, as
well as of its agents ; and where yourselves also will
be glided by your own view in the Legislative provis-
ions respecting them, which may, from time to time, be
necessary. They are preserved in such condition, as
well the vessels as whatever belongs to them, as to be
at all times ready for sea on a short warning. Two
others are yet to be laid up, so soon as they shall re-
ceive the repairs vequisite to put them also into sound
condition. As a superintending officer will be neces-
sary at each yard, his duties and emoluments, hitherto
fixed by the Executive, will be a more proper subject
for legislation. A communication will also be made of
our progress in the execution of the law respecting the
vessels directed to be sold.
The fortifications of our harbors, more or less ad-
vanced, present considerations of great difficulty.
While some of them are on a scale sufficiently propor-
tioned to the advantages of their position, to the effica-
cy of their protection, and the importance of the points
within it, others are so extensive, will cost so much in
their firs^ erection, so much in their maintenance, and
require such a force to garrison them, as to make it
questionable what is best now to be done. A state-
ment of those commenced or projected ; of the expen-
ses already incurred ; and estimates of their future
cost, as far as can be foreseen, shall be laid before you,
that you may be enabled to judge whether any altera-
tion is necessary in the laws respecting this subject.
Agriculture, manufactures, commerce, and naviga-
tion, the four pillars of our prosperity, are then most
thriving when left most fi*ee to individual enterprise.
Protection firom casual embarrassments, however, may
sometimes be seasonably interposed. If, in the course
of your observations or inquiries, they should appear
to need any aid within the limits of our Constitutional
powers, your sense of their importance \b a sufficient
assurance they will occupy your attention. We can-
not, indeed, but all feel an anxious solicitude for the
difficulties under which our carxying trade will soon be
placed. How far it can be relieved, otherwise than by
time, is a subject of important consideration.
The Judiciary system of the United States, and espe-
cially that portion of it recently erected, will, of course,
present itself to the contemplation of Congress ; and
that they may be able to judge of the proportion which
the institution bears to the business it has to perform, I
have caused to be procured firom the several States, and
now lay before Congress, an exact statement of all the
causes decided since the first establsdiment of the courts,
and of those which were depending when additional
courts and judges were brought in to their aid.
And while on the Judiciary organization, it will be
worthy of your consideration whe&er the protection of
the inestimable institution of juries has been extended
to all the cases involving the security of our persons
and property. Their impartial selection also being es-
sential to their value, we ought further to consider
whether that \s sufficiently secured in those States
where they are named by a marshal depending on Ex-
ecutive wUl, or designated by the court, or by officers
dependent on them.
i cannot omit recommending a revisal of the laws on
the subject of naturalization. Considering the ordina-
ry chances of human life, a denial of citizenship under
a residence of fourteen years. Lb a denial to a great pro-
portion of those who ask it ; and controls a policy pur-
sued, from their first settlement, by many of these
States, and still believed of consequence to their pros-
perity. And shall we refuse to the unhappy fugitives
firom distress that hospitality which the savages of the
wilderness extended to our fathers arriving in this landl
Shall oppressed humanity find no asylum on this globel
The Constitution, indeed, has wisely provided that, for
admission to certain offices of important trust, a resi-
dence shall be required sufficient to develop character
and design. But might not ^e general character and
capabilities of »eitizen be safely communicated to every
one manifesting a bona fide purpose of embarking his
life and fortunes permanently with us ? with restric-
tions, perhaps, to guard against the frauduleat usiurpa-
tion of our flag 1 an abuse which brings so much em-
barrassment and loss on the genuine citizen, and so
much danger to the nation of being involved in war,
that no endeavor riiould be spared to detect and sup-
press it.
These, fellow-citizens, are the matters respecting the
state of the nation which I have thought of importance
to be submitted to your consideration at this time.
Some others of less moment, or not yet ready for com-
munication, will be the subject of separate Messages.
I am happy in this raportunity of committing the ar-
duous anairs of our Government to the collected wis-
dom of the Union. Nothing shall be wanting on my
.part to inform, as far as in my power, the Legpisiative
judgment, nor to carry that judgment into faithful exe-
cution. The prudence and temperance of your discus-
sions will promote, within your own walls, that concil-
iation which so much befriends rational conclusion ;
and by its example will encourage among our constitu-
ents that progress of opinion which is tending to unite
them in object and in wilL That all should be satis-
fied with any one order of things, lb not to be expect-
ed ; but I indulge the pleasing persuasion that the great
body of our citizens wUl cordially concur iti honest and
disinterested efforts, which have for their object to pre-
serve the General and State Governments in their Con-
stitutional form and equilibrium; to maintain peace
jibroad, and order and obedience to the laws at home ;
to establish principles and practices of administration
fiivorable to the security of liberty and property, and to
reduce expenses to what is necessary for the useful
purposes of Government.
TH : JEFFERSON.
Dbcbmbib 8, 1801.
17
HISTORY OF CONaRESS.
18
December, 1801.
Proceedings.
Senate.
The Letter aod Message were reid, and order-
ed to be printed for the use of the Senate.
The papers referred to in the Message were io
part readj and the Senate adjourned.
Wednesday, December 9.
The reading of the papers referred to in the
Message of the President of the United States of
the 8th instant was resumed, and five hundred
copies of the Message, together with the papers
therein referred to, ordered to be printed tor the
use of the Senate.
The Senate proceeded to the appointment of a
Chaplain to Congress on their part, and the Rev.
Mr. Gantt was elected.
Thursday, December 10.
Besolved^ That James Mathers, Sergeant-at-
Arms and Doorkeeper to the Senate, be, and he is
hereby, authorized to employ one additional assis-
tant, and two horses, for the purpose of perform-
ing such services as are usiially required of the
Doorkeeper to the Senate ; and that the sum of
twenty-eight dollars be allowed him weekly for
the purpose during the session, and for twenty
days after.
A mes5age from the House of Representatives
informed the Senate that the House have appoint-
ed a joint committee on their part for enrolled bills,
and desire the appointment of such committee on
the part of the Senate.
Resolvedf That the Senate do concur in the ap-
pointment of a joint committee for enrolled bills,
and that Mr. Wright be the oommittae on the
part of the Senate.
Fbiday, December 11.
Jonathan Mason, from the State of Massachu-
setts and James Sbeafe, from the State of New
Hampshire, severally attended.
The President laid before the Senate a letter
from Samuel Meredith, Treasurer, together with
his general, navy, and war accounts, ending 31st
December, 1800, 31st March, 30th June, and 30tb
September, 1801 ; which were read.
Ordered^ That they lie on file.
Monday, December 14.
James Hillhouse, from the State of Connec-
ticut, and DwiOHT Foster, from the State of
Massachusetts, severally attended.
A message from the House of Repreflentatives
informed the Senate that the House have elected
the Reverend William Parkinson a Chaplain
to Congress, on their part.
Tuesday, December 15.
The Senate met. but transacted no business.
Wednesday, December 16.
The President laid before the Senate a letter
from the Secretary for the Department of State,
with an annual return, ending the 9th instant, con-
taining an abstract of all the returns made by the
Collectors of the Customs for the difiereat ports,
pursuant to the act for the relief and protection
of American seamen, together with abstracts from
the commanications received from the agents em-
ployed in foreign countries for the relief of Ameri-
can seamen ; which were read, and ordered to be
printed.
A motion was made by Mr. Jackson, seconded
by Mr. Nicholas, that it be
Resolved, by the Senate and House of Representa-
tives of the United States^ in Congress assembled^ That,
as a testimony of the high sense they entertain of the
nautical skill and g^aUant coiKlttct of Lieatemnt Andrew
Bterret, commander of the United States' schooner En-
terprize, manifested in an engagement with, and in the
captore of, a Tripolitan conair of superitHr force, in the
Mediterranean sea, fitted out by the Bey of tliat Re-
gency to harass the trade, capture the vesseis, and enslave
the dtisens of these States : the President of the Uni-
ted States be requested to present Lieutenant Sterret
with a sword, wiUi such suitable devices thereon as he
shall deem proper, and emblematic of that heroic action ;
and the mercy extended to a barbarous enemy, who
three times struck his colors, and twice recommenced
hostilities — an act of humanity, however unmerited,
highly honorable to the American flag and nation : and
that the President of the United States be also request-
ed to present Lieutenant Lane of the marines, who
was with a detachment of that corps, serving on board
the Enterprize in that engagement, and contributed, by
his and his detachment's gallant conduct, to the success
of the day, with a medal, with such suitable devices as
the President may deem fit.
Be it further resohedy In consideration of the intre-
pid behaviour of the crew of the Entexprize, under the
orders of their gallant commander, and their receiving
no prize money, the conair being dismantled and re-
leased after her capture, that one month's pay over and
above the usual allowance, be paid to all the other offi-
cers, sailors, and marines, who were actually on board
and engaged in diat action; for the expenditure of
which charge Congress will make the necessary appro-
priation.
And it was agreed that this motion lie for con*
sideration.
Mr. Cocke presented the petition of Daniel Fox,
a soldier of the militia, under the command of
General Sevier, in the year 1793, rendered incapa-
ble of labor by a nervous complaint, contracted in ,
an expedition against the Cherokee Indians; and*
prayiQg relief. The petition was read.
Ordered, That it be referred to Messrs. Cocke,
Ellbrt, and Nicholas, to consider and report
thereon.
On motion, it was agreed, that the Message of
the President of the United States, of the 8th in-
stant, be made the order of the day for to-morrow,
to be considered as in a Committee of the Whole.
The Presiuent laid before the Senate a letter
from Simon Willard, to the Secretary of the
Senate, on the subject of compensation for an
eight-nlay clock, purchased by order of the 25th of
February last, ior the use of the Senate Chamber ;
which was read and referred to Messrs. Jackson,
J. Mason, and T. Foster, to consider apd report
thereon.
19
HISTORY OF CONGRESS.
20
Senate.
Proceedings,
December, 1801 .
Thursday, December 17.
The President laid before the Senate the re-
port of the Commissioners of the Sinking Fund;
which was read and ordered to be printed for the
use of the Senate.
The order of the day, on the Message of the
President of the United States of the 8th instant,
was postponed until to-morrow.
Friday, December 18.
Mr. TRAcy, from the joint committee appoint-
ed the 7th instant, on a representation respecting
the books purchased in pursuance of a resolution
of 24th April, 1800, made report ; which was read
and ordered to lie for consideration.
Mr. Cocke, from the committee appointed on
the 16th instant, to consider the petition of Daniel
Fox, made report ; which was read and recom-
mitted, further to consider and report thereon.
Mr. Anderson gare notice that he should, to*
morrow, ask leave to bring in a bill for the dis-
charge of Laurance Erb from his confinement.
Saturday, December 19.
Gouverneur Morris, from the State of New
York, attended.
Thomas Sumter, appointed a Senator by the
Legislature of the State of South Carolina, in the
place of their late Senator, Charles Pinckney, re-
signed, produced his credentials, was qualified, and
took his seat in the Senate.
Monday, December 21.
The credentials of George Logan, appointed a
Senator by the Legislature of the State of Pennsyl-
vania, were presented and read; and the affirma;
tion orescribed by law was administered by the
President.
The President laid before the Senate a report
from the Secretary for the Department of Treas-
ury, in obedience to the directions of the act sup-
plementary to the act entitled "An act to estab-
lish the Treasury Department j" which was read,
and ordered to be printed.
A message from the House of Representatives
informed the Senate that the House have passed a
resolution that the Secretary of State be directed
to cause to be furnished to each member of the
two Houses a copy of the laws of the sixth Con-
flress ; in which they desire the concurrence of the
Senate.
The Senate took into consideration the report
of the joint committee, made on the 18th instant,
respecting the books purchased in pursuance of a
resolution of Congress of the 24th April, 1800 ;
which report was adopted as amended, and sundry
resolutions consequent thereon agreed to.
Tuesday, December 22.
David STONE,fromthe State of North Carolina,
attended.
The resolution, sen( yesterday from the House
of Representatives, authorizing the Secretary of
State to supply the members of Congress with the
fifth volume of the laws, was.considered, and post-
poned for farther consideration.
Wednesday, December 23.
A message from the House of Representatives,
informed the Senate that the House have passed
a bill extending the privilege of franking[ letters to
the delegate from tne Mississippi Territory, and
making provision for his compensation, in which
they desire the concurrence oi the Senate.
The bill was read and ordered to lie on the table.
Agreeably to notice yesterday given, Mr. An-
derson obtained leave to bring in a bill authorizing
the discharge of Laurance Erb from his confine-
ment ; which was read and passed to the second
reading.
Mr. Cocke, from the committee to whom was
recommitted, pn the 18th instant, the petition of
Daniel Fox, made a further report ; which "was
read and ordered to lie for consideration. .
The following Messages were received from the
President of the Uniteet States :
Gentlemen of the Senate,
and of the House of Representatives :
I now enclose sundry documents supplementary to
those communicated to you with my Message at the
commencement of the session. Two others, of consid-
erable importance, the one relating to our transactions
with the Barbary Powers, the other presenting a view
of the offices of the Government, shall be communicated
as soon as they can be completed.
Dxc. 22. 1801. TH: JEFFERSON.
Gentlemen of the Senate,
and of the House of R^resentatives :
Another return of the census of the State of Mary-
land is just received from the Marshal of that State,
which he desires may be substituted as more correct
than the one first returned by him and communicated
by me to Congress. This new return, with his letter,
is now laid before you.
Dec. 23, 1801. TH: JEFFERSON.
The Message and papers therein referred to were
read, and severally ordered to lie for consideration.
Thursday, December 24.
The bill authorizing the discharge of Laurance
Erb from his confinement was read the second
time, and committed to Messrs. Anderson, Tract^
and Bradley, to consider and report thereon.
The President laid before the Senate a report
of the Postmaster General, in obedience to the "Act
to establish the Post Office ;" which was read, and
ordered to lie for consideration.
The bill, sent from the House of Representatives
for concurrence, extending the privilege of franking
letters to the delegate from tne Mississippi Ter-
ritory, and making provision for his compensation,
was read the second time, and the further consid-
eration thereof postponed until Monday next.
Monday, December 28.
John Ewing Colhoun, appointed a Senator by
the Legislature of the State of South Carolina,
21
HISTORY OF CONGRESS.
22
January, 1802.
Reporting the Debates,
Senate.
produced bis oredeotials, wasqualifiedjand took his
seat in the Senate.
On motion, it was agreed that the bill extending
the privilege of franking letters to the delegate
from the Missishippi Territorjr, and making prori-
sioD for his compensation, which was the order of
the day, be postponed to the 12th of January next.
Tuesday, December 29.
The Senate proceeded to the consideration of
Executive business.
Wednesday, December 30.
Mr. Tracy gare notice that he should, to-mor-
row, ask leave to bring in a bill to carry into effect
the appropriations of land in the purchase of the
Ohio company, in the Northwestern Territory, for
the support ol schools and religion, and for other
purposes.
Thursday, December 31.
Mr. BRECEENRincE presented the petition of
Isaac Zane, stating that he was made a prisoner
at the age of nine years by the Wyandot Indians,
with whom he remained until he became of a^e;
had a family by a woman of that nation, and a
tract of land was assigned him by the said nation,
on a branch of the Great Miami, and which tract
of land was ceded to the United States by a recent
treaty with the said Wyandot Indians, and pray-
ing such relief as may be deemed equitable ; and
the petition was read, and committed to Messrs.
Breckenridob, Tracy, and Ooden, to consider
and report thereon.
A message from the House of Representatives
informed the Senate that the House disagree to
the resolutions of the Senate respecting the books
and maps purchased pursuant to a resolution of
Congress of the 24th of April. 1800. They hare
passed a bill concerning the library for the use of
Doth Houses of Congress, in which they desire
the concurrence of the Senate.
The bill was twice read by unanimous consent,
and committed to Messrs. Tracy, Logan, and
Dayton, to consider and report thereon.
The Senate took into consideration the motion
made on the 16th instant respecting Lieutenant
Sterret, commander of the United States schooner
Enterprise; which motion was amended and
agreed to, and sundry resolutions adopted accord-
ingly.
Monday, January 4. 1802.
Mr. Breckenridge notified the Senate that he
should, on Wednesday next, move for the order of
the day on that part of the Message of the Presi-
dent ot the United States of the 8th of December
last, which respects the judiciary system.
Tuesday, January 5.
Mr. BroWxN, from the State of Kentucky, at-
tended.
REPORTING THE DEBATES.'
The President laid before the Senate a letter
signed Samuel H. Smith, stating that he was de-
sirous of taking notes of the proceedings of the
Senate, in such manner as to render them correct :
Whereupon,
jRe8olved, That any stenographer desirous to
take the debates of the Senate on Legislatire
business^ may be admitted for that purpose, at such
place within the area of the Senate Chamber as
the President may allot :
And, on motion to reconsider the above resolu-
tion, it passed in the affirmative — yeas 17, nays 9.
Ykas — Messrs. Anderson, Breckenridge, Cocke, Day-
ton, EUery, Dwight Foster, Hillhouse, Howard, Logan,
Jonathan Mason, Morrb, Ogden, Olcott, Sumter, Tracy,
White, and Wright.
Nats — Messrs. Baldwin, Brown, Chipman, T. Fos-
ter, Franklin, Jackson, Nicholas, Sheafe, and Stone.
On motion, to amend the resolution, by adding)
after the word stenographer, ^^ He having given
bond in the sum of , with two sufficient sure-
ties, in the sum of each, for his good con-
duct," it passed in the negative — yeas 10, nays
18, as follows :
YsAs — Messrs. Chipman, Dayton, Dwight Foster,
Hillhouse, Howard, Morris, Ogden, Olcott, Sheafe, and
Tracy.
Nats — Messrs. Anderson, Baldwin, Breckenridge,
Brown, Cocke, Colhoun, EUery, T. Foster, Franklm,
Jackson, Logan, 8. T. Mason, J. Mason, Nicholas,
Stone, Sumter, White, and Wright
On motion, to agree to the original resolution,
amended by adding the words '^or note-taker,''
after the words stenographer, it passed in the af-
firmative— yeas 16, nays 12, as follows :
Ybas — Messrs. Anderson, Baldwin, Breckenridge,
Brown, Cocke, Colhoun, EUery, T. Foster, Franklhi,
Jackson, Logan, S. T. Mason, Nicholas, Stone, Sum-
ter, and Wright.
Nats — Messrs. Chipman, Dayton, Dwight Foster,
HiUhouse, Howard, J. Mason, Morris, Ogden, Olcott,
Sheafe, Tracy, and White.
So it was Resolved, That any stenographer, or
note-taker, desirous to take the debates of the Sen-
ate on Legislative business, ma^ be admitted for
that purpose at such place, within the area of the
Senate Chamber, as the President shall allot.*
[From the National Intelligencer of Jan. 8, 1802.]
* On Monday last the editor addressed a letter to the
President of the Senate, requesting permission to occu-
py a position in the lower area of the Senate Chamber,
for the purpose of taking with correctness the debates
and proceedings of that body.
It may be necessary to remark that heretofore no ste-
nographer has been admitted in this area ; and the up-
per gallery, being open to the admission of every one,
and very remote from the floor of the House, has pre-
vented any attempt being made to take the debates,
from the impossibility of hearing distinctly from it.
The contents of the letter were submitted by the Free*
ident to the Senate ; and a resolution agreed to, to the
following eflfoct : Resolved, That any stenographer, de-
sirous to take the debates of the Senate on Legislative
business, may be admitted for that purpose, at sueh
23
HISTORY OF CONGRESS.
24
Senate.
Judiciary System.
January, 1802.
The President laid before the Senate a letter
signed William Doughty, clerk, with the general
account of the late Treasurer of the United Slates,
to the 30th of September, 1801 ; which was read,
and ordered to lie on file.
Wednesday, January 6.
Mr. Breckenridoe moved that the Senate pro-
ceed to the consideration of the President's Mes-
sage, delivered at the commencement of the ses-
sion. Agreed to.
JUDICIARY SYSTEM.
Mr. Mason called for the reading of the Mes-
sage^ which was in part read ; when the further
reading of the whole document was suspended,
and that part only read, which relates to the Ju-
diciary System.
Upon which Mr. Breckenridoe, from Ken-
tucky, rose, and stated that two days ago he had
given notice that on this day he would submit tu
the consideration of the Senate two resolutions
respecting the Judiciary Establishment of the
United States. As, however, those resolutions
were not necessarily connected, and as they might
be distinctly discussed, he would at present con-
fine himself to moving the first resolution ; with-
out however foreclosing to himself the right of
submitting the second after the disposition of the
first. He, therefore, moved that the act passed
last session respecting the Judiciary Establish-
ment of the United States^ be repealed.
[This is the act which created sixteen new cir-
cuit judges.]
The motion was seconded by Mr. Mason.
After the resolution was read by the Presi-
dent,
Mr. Breckenridoe said he did not desire to
place, within the area of the Senate Chamber, as the
rreaident shall allot
Whereupon, a motion was made to reconsider the
above resolution, and agreed to. The yeas and nays
being taken, which were — yeas 17, nays 9.
It was then moved to amend the resolution by adding,
vfter the word << stenogprapher," ^ he having given bond
in the sum of , with two sufficient sureties in the
sum of '■■ each, for his good conduct."
On which the yeas and nays were called, and stood —
yeas 10, nays 18.
It was then moved to agree to the original resolution
Amended, by adding the words, " or note*taker" after
the word " stenographer ;'* which passed in the affirma-
tive. The yeas and nays being required were-— yeas 1 6,
nays 12.
On Wednesday the editor had, accordingly, assigned
to him a ocHivenient place in the lower area, fiom which
he took notes of the proceedings of the Senate.
On the adoption of the above resolution, which opens
A new door to public information, and which may be
considered as the prelude to a more genuine sympathy
between theSenate and the people of the United States,
ihan may have heretofore subsisted, by rendering each
better acquainted virith the other, we congratulate, with-
out qualification, eveiy friend to the true principles of
our republican institutions.
precipitate a votis on the question. But, having
given notice two days since of his intention to
move this resolution, ne was himself prepared, if
other gentlemen were prepared, to ofier his senti-
ments on the subject, ^ut if this were not the
case ; if gentlemen were not prepared to enter in-
to a discussion of a |)oint of such importance, be
was not anxious for immediate coDsiaeration.
Mr. Tract observed that the ordinary mode
of procedure in Senate had been to refer, in the
first instance, each substantive member of the
President's Message to a select committee. But
though this was the usual course, yet he felt in no
way nostile to any mode of doing Dusiness, which
should be most agreeable to the gentleman from
Kentucky^ or to the House. With an adherence
to the ormnary course, he would have been better
pleased, for the substantial reason, that by a ref-
erence of the subject to a select committee, on
receiving a report, the minds of the House would
be drawn more precisely to the points involved
in it, than could be expected from a resolution so
loose as the present, which could only give rise to
verbal discussions.
Another course of procedure had not been unu-
sual— that of obtaining leave to bring in a bill, in
which event, the same result desired by Mr. Tra-
ct would be insured, riz: the reference of the
bill to a committee.
Mr. S. T. Mason differed from the gentleman
from Connecticut. He believed the mode, now pur-
sued, was perfectly correct, and conformable to a
principle adopted this session, that the Senate was
to be considered as in a committee of the whole
on the President's Message, whenever taken up.
Nor did he discern the necessity, in a body so se-
lect as this, of referring each subject to a select
committee. But as the subject is extremely im-
portant, and some gentlemen seemed unprepared
for the discussion, he moved its postponement till
Friday.
Mr. Brcckenridge said, that though he had
given notice, in his opinion sufficient, of his pur-
pose, yet, not wishing a precipitate discussion, he
would agree to the desired delay.
The consideration of the resolution was then
deferred to Friday next.
TauRsnAT, January 7.
A message from the House of Representatives
informed the Senate that the House have passed
a bill for the apportionment of representatives
among the several States, according to the second
enumeration, in which they desire the concur-
rence of the Senate.
The bill was read the first time, and, by unani-
mous consent, a second time.
Ordered, That it be referred to Messrs. Logan,
Nicholas, Ellert, Jackson, and Stone, to con-
sider and report thereon.
Mr. TracYj from the committee to whom was
referred the bill concerning the library for the use
of both Houses of Congress, reported amend-
ments ; which were read, and oraered to lie for
consideration.
25
HISTORY OP CONGRESS.
26
January, 1802.
Judiciary System.
Senate.
Friday, January 8.
The President read a letter addressed to him,
and signed Thomas Tingey, and others, the ves-
try of Washington parish, in hehalf of themselves
and the other members ot that church, soliciting
the use of the room in the Capitol now occupied
by the Court, as a place of worship on Sundays,
during the inclemency of Winter.
Mr. Logan, from the committee, reported the
bill for the apportionment of representatives among
the several States, according to the second enu-
meration, without amendment; and it was agreed
that the further consideration of this bill should
be postponed to Monday next.
JUDICIARY SYSTEM.
Agreeably to the order of the day, the Senate
proceeded to the consideration or the motion
made on the 6th instant, to wit :
" That the act of Congress passed on the 13th day
of February, 1801, entitled * An act to provide for the
more convenient organization of the Courts of the Uni-
ted States,' ought to be repealed."
Mr. Brbckenridge then rose and addressed the
President, as follows :
It will be expected of me, I presume, sir, as I
introduced the resolution now under considera-
tion, to assign my reasons for wishing a repeal of
this law. This I shall do; and shall endeavor to
show,
1. That the law is unnecessary and improper,
and viras so at its passage; and
2. That the courts and judges created by it, can
and ought to be abolished.
1st. That the act under consideration was un-
necessary and improper, is, to my mind, no diffi-
cult task to prove. No increase of courts or judges
could be necessary or justifiable, unless the exist-
ing courts and judges were incompetent to the
prompt and proper discharge of the duties con-
sign ed'to them. To hold out a show of litigation,
when in fact little exists, must be impolitic; and
to multiply expensive systems, and create hosts
of expensive officers, without having experienced
an actual necessity for them, must be a wanton
waste of the public treasure.
The document before us shows that, at the pas-
sage of this act, the existing courts, not only from
their number, but from the suits depending be-
fore them, were fully competent to a speedy de-
cision of those suits. It shows, that on the 15th
day of June last, there were depending in all the
circuit courts, (that of Maryland only excepted,
whose docket we have not been furnished with,)
one tl^ousand five hundred and thirty-nine suits.
It shows that eight thousand two hundred and
seventy-six suits of every description have come
before those courts, in ten years and upwards.
From this it appears, that the annual average
amount of suits has been about eight hundred.
But sundry contingent things have conspired to
swell the circuit court dockets. In Maryland,
Virginia, and in all the Southern and Southwest-
ern States, a great number of suits have been
1
brought by British creditors ; this species of con-
troversy is nearly at an end.
In Pennsylvania, the docket has been swelled
by prosecutions in consequence of the Western
insurrection, by the disturbances in Bucks and
Northampton counties ; and by the sedition act.
These I nnd amount in that State to two hundred
and forty suits.
In Kentucky, non-resident land claimants have
gone into the federal court from a temporary con-
venience: because, until within a year or two
past, there existed no court of general jurisdiction
co-extensive with the whole State. I find, too,
that of the six hundred and odd suits which nave
been commenced there, one hundred and ninety-
six of them have been prosecutions under the laws
of the United States.
In most of the States there have been prosecu-
tions under the sedition act. This source of liti-
gation is, I trust, forever dried up. And, lastly, in
aU the States a number of suits have arisen under
the excise law ; which source of controversy will,
I hope, before this session terminates, be also dried
up.
But this same document discloses another im-
portant fact; which is, that notwithstanding all
these untoward and temporary sources of federal
adjudication, the suits in those courts are decreas-
ing; for, from the dockets exhibited (except Ken<-
tucky and Tennessee, whose suitsare summed upin
the aggregate) it appears, that in 1799 there were
one thousand two hundred and seventy-four, and
in 1800 there were six hundred and eighty-seven
suits commenced; showing a decrease of five hun-
dred and eighty-seven suits.
Could it be necessary then to increase courts
when suits were decreasing? Could it be neces-
sary to multiply judges, when their duties were
diminishing? And will I not be justified, there-
fore, in affirming, that the law was unnecessary,
and that Congress acted under a mistaken im-
pression, when they multiplied courts and judges
at a time when litigation was actually decreasing?
But, sir, the decrease of business goes a small
way in fixing my opinion on this subject. I am in-
clined to think, that so far from there having been
a necessity at this time for an increase of courts
and judges, that the time never will arrive when
America will stand in need of thirty-eight federal
judges. Look, sir, at your Constitution, and see
the judicial power there consigned to federal
courts, and seriously ask yourself, can there be
fairly extracted from those powers subjects of lit-
igation sufficient for six supreme and thirty-two
inferior court judges? To me it appears impos-
sible.
The judicial powers given to the federal courts
were never intended by the Constitution to em-
brace, exclusively, subjects of liti^tion, which
could, with propriety, be left with the State
courts. Their jurisdiction was intended princi-
pally to extend to great national and foreign con-
cerns. Except cases arising under the uiws of
the United States, I do not at present recollect
but three or four kinds in which their power ex-
tends to subjects of litigation, in which private
27
HISTORY OF CONGRESS.
Senate.
Judiciary System.
Janoart, 18Q2
persons only are concerned. And can it be pos-
sible, that with a jurisdiction embracing so small
a portion of private litigation, in a great part of
wnich the State courts might, and ought to par-
ticipate, that we can stand in need of thirty-eight
judges, and expend in judiciary regulations the
annual sum of $137,000?
No other country, whose regulations I have any
knowledge of, furnishes an example of a system
so prodigal and extensive. In England, whose
courts are the boast, and said to be the security of
the rights of the nation, every man knows there
are but twelve judges and three principal courts.
These courts embrace, in their original or appel-
late jurisdiction, almost the whole circle of human
concerns.
The King's Bench and Common Pleas, which
consist of four judges each, entertain all the com-
mon law suits of 40«. and upwards, originating
among nine millions of the most c6mmercial peo-
ple in the world. They moreover revise the pro-
ceedings of not only all the petty courts of record
in the Kingdom, even down to the courts of pie-
poudre, but also of the Court of King's Bench in
Ireland; and these supreme courts, after centuries
of experiment, are found to be fully competent to
all the business of the Kingdom.
I will now inquire into the power of Congress
to put down these additional courts and judges.
First, as to the courts, Congress are empowered
by the Constitution "from time to time, to ordain
and establish inferior courts." The act now un-
der consideration, is a legislative construction of
this clause in the Constitution, that Congress may
abolish as well as create these judicial officers;
because it does expressly, in the twent>[-seventh
section of the act, abolish the then existing infe-
rior courts, for the purpose of making way for the
present. This construction, I contend, is correct;
but it is equally pertinent to my object, whether
it be or be not. If it be correct, then the present
inferior courts may be abolished as constitutionally
as the last; if it be not, then the law for abolishing
the former courts, and establishing the present,
was unconstitutional, and consequently repealable.
But independent of this legislative construction,
on which I do not found m^ opinion, nor mean
to rely my argument, there is little doubt indeed,
in my mincL as to the power of Congress on this
law. The nrst section of the third article vests the
judicial power of the United States in one Su-
preme Court and such inferior courts as Congress
may, from time to time, ordain and establish. By
this clause Congress may^ from time to time, es-
tablish inferior courts; but it is clearly a discretion-
ary power, and they may not establisn them. The
language of the Constitution is verv different when
regulations are not left discretional. For example,
^ The trial," says the Constitution, " of all crimes
' (except in cases of impeachment) shall be by j ury :
^ representatives and direct taxes shall be apportion-
' ed according to numbers. All revenue bills shall
' originate in the House of Representatives," dbc.
It would, therefore, in my opinion, be a perver-
sion, not only of language, but of intellect, to say,
that althouga Congress may, from time to time.
establish inferior courts, yet, when established, that
they shall not be abolished by a subsequent Con-
gress possessing equal powers. It would be a para-
dox in legislation.
2d. As to the judges. The Judiciary depart-
ment is so constructed as to be sufficiently secured
against the improper influence of either the Ex-
ecutive or Legislative departments. The courts
are organized and established by the Legislature,
and the Executive creates the judges. Being thus
organized, the Constitution affords the proper
checks to secure their honesty and independence
in office. It declares they shall not be removed
from office during good behaviour; nor their sal-
aries diminished during their continuance in office.
From this it results, that a judge, after his appoiat-
ment, is totally out of the power of the President,
and his salary secured against legislative diminu-
tion, during his continuance in office. The first
of these checks, which protects a judge in his of-
fice during good behaviour, applies to the Presi-
dent only, who would otherwise have possessed
the power of removing him, like all other officers,
at pleasure; and the other check, forbidding a di-
minution of their salaries, applies to the Legisia-
ture only. They are two separate and distinct
checks, turnishea by the Constitution against two
distinct departments of the Government; and they
are the only ones which are or ought to have been
furnished on the subject.
But because the Constitution declares that a
judge shall hold his office during good behaviour,
can it be tortured to mean, that he shall hold his
office after it is abolished? Can it mean, that his
tenure should be limited by behaving well in an
office which did not exist? Can it mean that an
office may exist, although its duties are extinct?
Can it mean, in short, that the shadow, to wit, the
judge, can remain, when the substance, to wit, the
office, is removed? It must have intended all
these absurdities, or it must admit a construction
which will avoid them.
Theconstructionobviouslyis,*that a judge should
hold an existing office, so long as he did his duty
in that office ; and not that he should hold an office
that did not exist, and perform duties not provi-
ded by law. Had the construction which I contend
against been contemplated by those who framed
the Constitution, it would have been necessary to
have declared, explicitly, that the judges should
hold their offices and their salaries during good
behaviour.
Such a construction is not only irreconcileable
with reason and propriety, but is repugnant. to the
principles of the Constitution. It is a principle
of our Constitution, as well as of common honesty,
that no man shall receive public money Jbut in
consideration of public services. Sinecure offices,
therefore, are not permitted by our laws or Con-
stitution. By this construction, complete sinecure
offices will be created ; hosts of Constitutional pen-
sioners will be settled on us, and we cannot cal-
culate how long. This is really creating a new
species of public debt, not like any other of our
debts; we cannot discharge the principal at any
fixed time. It is worse than the deferred stock ;
29
fflSTORY OF CONGRESS.
30
January, 1802.
Judiciary System.
Senate.
for on that you pay aa annual interest only, and
the principal is redeemable at a ^iven period. But
here, jrou pay an annual principal, and that prin-
cipal irredeemable except by the will of Provi-
dence. It may suit countries where public debts
are considered as public blessings; for in this way
a people might soon become superlatively blessed
indeed.
Let me not be told, sir, that the salaries in the
present case are inconsiderable^ and ought not to
De withheld ; and that the doclnne is not a danger-
ous one. I answer, it is the principle I contend
against ; and if it is heterodox for one dollar, it is
equally so for a million. But I contend the prin-
ciple, if once admitted, may be extended to de-
structive lengths. Suppose it should hereafter hap-
pen, that those in power should combine to pro-
vide handsomely for their friends, could any way
so plain, easy, and effectual, present itself as by
creating courts, and filling them with those friends?
Might not sixty as well as silteen, with salaries
of twenty thousand, instead of two thousand dol-
lars, be provided for in this way ? *
The thing, I trust, will not happen. It is pre-
suming a high degree of corruption ; but it might
happen under the construction contended for ; as
the Constiution presumes corruption may happen
in any department of the Qovernment. by the
checks it has furnished against it ; and as this con-
struction does open a wide door for corruption^ it
is but fair reasoning to show the dangers which
may grow out of it ; for, in the construction of all
instruments, that which will lead to inconvenience,
mischief, or absurdity, ought to be avoided. This
doctrine has another difficulty to reconcile : After
the law is repealed, they are either judges or they
are not. If they are judges they can be impeached ;
but for what? For malfeoBance in office only.
How, I would ask, can they be impeached for
malfeasancs in office^ when tneir offices are abol-
ished ? They are not officers, but still they are en-
ti tied to the emoluments annexed to an office. Al-
thouprh they are judges, they cannot be guilty of
malfeasances, because tfiev have no office. Tney
are only quasi judges so uir as regards the duties^
but real ludges so far as regards tbe ealary. It
must be tne salary , then, and not the duties which
constitute a judge. For my part, I do not know
under what class of things to range them, or what
name to give them. They are unacknowledged
by the letter, spirit, or genius, of our Constitution,
and are to me non-descripts.
There is another difficulty under this construc-
tion still to encounter, and which also grows out
of the Constitution : By the Constitution, a new
State may be formed by the junction of two or
more States,^ with their assent and that of Con-
gress. If this doctrine, once a judge and always
a judge, be correct, what would you do in such an
event, with the district judees of the States who
formed that junction ? Both would be unneces-
sary, and you would have, in a single State, two
judges of e<}ual and concurrent jurisdiction ; or
one a real judge, with an office, and another a
?[uasi judge, without an office. The States also
orming such junction, would be equally embar-
rassed with their State judges; for the same con-
struction would be equally applicable to them.
Upon this construction, also, an infallibility is
predicated, which it would be arrogance in any
human institution to assume, and which goes to
cut up legislation by the roots. We would be de-
barred from that ^hich is indulged to us from a
higher source, and on subjects of higher concern
than legislation; I mean a retraction from and
Correction of our errors. On all other subjects o
legislation we are allowed, it seems, to change our
minds, except on judiciary subjects, which, of all
others, is the most complex abd difficult. I appeal
to our own statute book to prove this difficulty ;
for in ten years Congress have passed no less than
twenty-six laws on this subject.
I conceive, sir, that the tenure by which a judge
holds his offiee, is evidently bottomed on the idea
of securing his honesty and independence, whilst
exercising his office. The idea was introduced
in England, to counteract the influence of the
Crown over the judges ; but if the construction
now contended for shall prevail, we shall, in our
mistaken imitation of this our favorite prototype,
outstrip them, by establishing what they have not,
a judicial oligarchy ; for there their ju^es are re-
movable by a joint vote of Lords and Commons.
Here ours are not removable, except for malfea-
sance in office ; which malfeasance could not be
committed, as they would have no office.
Upon the whole, sir, as all courts under any free
Government must be created with an eye to the
administration of justice only ; and not with any
regard to the advancement or emolument of indi-
vidual men; as we have undeniable evidence before
us that the creation of the courts now under con-
sideration was totally unnecessary ; and as no Gov-
ernment can, I apprehend, seriously deny that this
Legislature has a right to repeal a law enacted by
a preceding one, we will, in any event, discharge
our duty by repealing this law ; and thereby doing
all in our power to correct the eril. If the judges
are entitled to their salaries under the Constitution,
our repeal will not affect them ; aod they will, no
doubt, resort to their proper remedy. For where
there is a Constitutional right, there must be a
Constitutional remedy.
Mr. Olcott, of New Hampshire, thought the
subject was of so much importance as to merit
further consideration. The arguments of the gen-
tleman from Kentucky, however ingenious, had
not convinced him that the law ought to be re-
pealed. It had not risen like a mushroom in the
night, but the principles on which it rested had
been settled after mature reflection, He thought
it would be extraordinary, before any inconveni-
ence had been discovered, to set such a law aside.
For these reasons, Mr. O. moved the postpone-
ment of the consideration of the question.
Mr. Cocke, of Tennessee. — This act is said to
be entirely experimental, and it is further said,
that no inconveniences had arisen under it. He
thought serious inconveniences had arisen. The
inconvenience of paying $137,000 a year was
truly serious ; and it was an inconvenience which
ought to be got rid of as soon as possible. It
31
HISTORY OF CONGUESS.
32
Senate.
Judiciary System.
January, 1802.
expected that gentlemen opposed to the resolu-
tion would come forward with their arguments
against it. It*, however^ they had no arguments
to use. he thought his friend from Kentucky had
brougnt forward reasons so cogent and experimen-
tal that the House must be convinced of the pro-
priety of the repeal.
Mr. Dayton, of New Jersey, trusted it was not
the disposition of the mover to press a decision
to-day. He thought it would be improper to post-
pone the discussion, as gentlemen would thereby
be precluded from offering their opinions on the
subject. He hoped the motion for postponement
would be withdrawn, that other gentlemen might
have an opportunity to speak.
The motion was withdrawn.
Mr. J. Mason, of Massachusetts, said, it would
be agreed on all hands that this was one of the
most important questions that ever came before a
Legislature. Were he not of this opinion he
would not have risen to offer his sentiments. But
he felt so deep an interest in the question, and
from the respect which he entertained for the dis-
trict of country he represented, he deemed it his
duty to meet the subject, and not be satisfied with
giving to it his silent negative.
It was well known, and he presumed it would
be readily agreed to, that no people on earth, for
the last twenty-f6ur years, had been so mucn in
the habit of forming systems of government as the
people of the United States. Nor had any peo-
ple been so fortunately situated for cool and cor-
rect deliberation. In the Constitutions they had
formed, it would appear that there had been an
uniform concurrence in the establishment of one
great prominent feature, and also in the applica-
tion of one uniform principle to that feature: that
the Legislative, the Executive, and the Judicial,
should form the three great departments of Qoy^
ernment, and that they should be distinct from
and independent of each other ; and the more the
proceedings and sentiments of the people were
examined, the more clearlv would it appear that
all the new and additional checks created, had
been applied to adjust the relative weakness or
strengtk of the several departments of Qovern-
ment. The same principle had been observed in
the old world, whenever an opportunity presented
for forminjr a constitution, having for its object,
the protection of individual rights. It accorded,
too, with the uniform opinions of the most cele-
brated historians and politicians, both of Europe
and America ; with the opinions and practices of
all our Legislatures. Nor had Mr. Mason ever
heard any one hardy enough to deny the propriety
of its observance.
He well recollected, that among the great griev-
ances, which had roused tis into an assertion of
our independence of England, it was declared in
the instrument asserting that independence, " that
the Crown had the appointment of judges de-
pendent on its will and favor."
From all these circumstances he concluded that
the people of America, when they formed a sys-
tem for their Federal Government, intended to
establish this great principle ; and the conclusion
would be confirmed by an examination of the
Constitution, which in every section recognised
or referred to it.
The Constitution, in the construction of the
Executive. Legislative, and Judiciary departmentSw
had assigned to each a different tenure. The Pre»^
ident was chosen for four years ; the Senate for
six years, subject to a prescribed rotation bienni-
ally ; the House of Representatives for two years ;
and the Judiciary during good behaviour, it says
to the President, at the expiration of every four
years, you shall revert to the character of a pri-
vate citizen, however splendid your talents or con-
spicuous your virtue. Why ? Because you have
assigned to you powers which it is dangerous to
exercise. You have the power of creating offi-
ces and officers. You have prerogatives. The
temptation to an abuse of your power is great.
Sucn has been the uniform experience of ages.
The Constitution holds the same language tolhe
Senate and House of Representatives: It says, it
is necessary for the good of society that you also
should revert it short periods to the mass of the
people, because to you are consigned the most
important duties of Urov^rnmentj and because yoa
hold the purs&-strings of the nation.
To the Judiciary : What is the language applied
to them? The judges are not appointed for two,
four, or any given number of years; but they
hold their appointments for life, unless they mis-
behave themselves. Why 1 * For this reason :
They are not the depositaries of the high prerog-
atives of Government. They neither appoint to
office, or hold thepurse-strings of the country, or
legislate for it. Thev depend entirely upon tHeir
talents, which is all they have to recommend
them. They cannot, theretore, be disposed to per-
vert their power to improper purposes. What are
their duties 7 To expound and apply the laws.
To do this, with fidelity and skill, requires a length
of time. The requisite knowledge is not to be
procured in a day. These are the plain and strong
reasons which must strike every mind, for the
different tenure by which the judges hold their
offices, and tbey are such as will eternally endure
wherever liberty exists.
On examination, it will be found that the peo-
ple, in forming their Constitution, meant to make
the judges as independent of the Legislature as
of the Executive. Because the duties which they
have to perform, call upon them to expound not
only the laws, but the Constitution also; in which
is involved the power of checking the Legisla-
ture in case it should pass any laws in violation
of the Constitution. For this reason it was more
important that the judges in this country should
be placed beyond tne control of the Legislature,
than in other countries where no such power at-
taches to them.
Mr. Mason challenged gentlemen to exhibit a
single instance, besides that lately furnished by
Maryland, of a Legislative act, repealing a laiv
passed in execution of a Constitution, under which
the judges held their offices during good beha-
viour. In truth, no such power existed, nor was
it in the power of any Ijegislature, so circum-
33
HISTORY OF CONGRESS.
34
January, 1802.
Judiciary System.
Senate.
stanced, by a single law to dash theiJi out of ex-
istence.
The opinion of Mr. Mason, therefore, was, that
this Legislature h*ave no right tb repeal the judi-
ciary law ; for such an act would be in direct vio-
lation of the Constitution.
The Constitution says : " The judicial power
* of the United States shall be vested in one Su-
' preme Court, and in such inferior courts as the
^ Congress may, from time to time, ordain and
' establish. The judges, both of the Supreme
* and inferior courts, shall hold their offices du-
^ ring good behaviour, and shall, at stated times,
' receive for their services, a compensation^ which
' shall not be diminished during their continuance
* in office."
Thus it says, " the judges shall hold their offi-
ces during good behaviour." How can this direc-
tion of the Constitution be complied with, if the
Legislature shall, from session to session, repeal
the law under wnich the office is held, and remove
the office 7 He did not conceive that any words,
which human ingenuity could devise, could more
completely get over the remarks that had been
made by the gentleman from Kentucky. But that
gentleman says, that this provision of the Consti-
tution applies exclusively to the President. He
considers it a§ made to supersede the powers of
the President to remove the judges, aut could
this h^ve been the contemplation of the framers
of the Constitution, when even the right of the
President to remove officers at pleasure, was a
matter of great doubt, and had divided in opinion
our most enlightened citizens. Not that he stated
this circumstance because he had doubts. He
thought the President ought to have the right;
but it did not emanate from the Constitution ; was
not expressly found in the Constitution, but sprang
from Legislative construction.
Besides, if Congress have the right to repeal
the whole of the law, they must possess the right
to repeal a section of it. If so, they may repeal
the law so far as it applies to a particular district,
and thus get rid of an obnoxious judge. They
may remove his office from him. Would it not
be absurd still to say, that the removed judge held
his office during good behaviour ?
The Constitution says : '' The judges shall, at
* stated times, receive for their services, a com pen-
* sation, which shall not be diminished during
' their continuance in office." Why this provis-
ion? Why guard against the power to aeprive
the judges of their pay in a diminution of it, and
not provide against what was more important,
their existence?,
Mr. Mason knew that a Legislative body was
occasionally subject to the dominance of violent
passions; he knew that they might pass unconsti-
tutional laws ; and that the judges, sworn to sup-
port the Constitution, would re^se to carr^ them
into effect; and he knew that the Legislature
might contend for the execution of their statutes:
Hence the necessity of placing the judges above
the influence of these passions; and for these rea-
sons the Constitution had put them out of the
power of the Legislature.
7th Con —2
Still, if the^ gentlemen would not agree with
him as to the unconstitutionality of the measure
proposed, he would ask, was it expedient ? Were
there not great doubts existing throughout the
United States? Ought not each gentleman to say,
though I may have no doubts or hesitancy, are
not a large portion of our citizens of opinion that
it would violate the Constiiution ? If this diver-
sity of sentiment exists, ought not the evils under
the judiciary law to be very great before we touch
it? Ought we not to aim at harmonizing, instead
of dividing our citizens ? Was not the Consti-
tution a sacred instrument ; an instrument ever
to be approached with reverence; an instrument
which ought not lightly to be drawn from its hal-
lowed retreat, and subjected to the flux and reflux
of passion ? But where is the evil complained of ?
This system was established only last session ;
scarcely had it been yet or£ranized ; scarcely had
we tried it on its very thresnold ; where then the
necessity of being so pointed, as to destroy a sys-
tem scarcely formed three days ago ? Does not
this manifest precipitation ? Will it not mani-
fest more magnanimity, more rationality, to abide
by it until we try it; instead of taking up a pen
and dashing it out of existence?
The reason that the suits depending were not
so numerous, arose from the nature of the old es-
tablishment. That establishment had no parallel.
It carried with it the seeds of its own dissolution.
No set of judges could be found physically hardy
enough to execute it. Such was the labor of their
duties, that they were denied time for study or
improvement. Besides, a case was heard at one
term by one judge, and postponed for consideration
to the next term. At that term another judge
appeared, and all the arguments were to be go^e
over anew, and the same thing might happen
again and again. Was this the wav to extend
justice to our citizens? Was not the aelay equiv-
alent to a denial of justice? It was a fact that
three-fourths of the time of the judges had been
taken up in travelling.
It may be true, that the number of suits in the
federal courts is lessened; and if the internal
taxes are to be swept away, it may be still more
lessened as far as depends upon that source. But
is it possible, that suits will go on diminishing as
the gentleman seems to think ? Is reason so pre-
dominant? Is the millenium so near at hand?
On the contrary, is not our commerce increasing
with great rapidity ? Is not our 'wealth increas-
ing ? And will not controversies arise in propor-
tion to the growth of our numbers and property?
controversies, which will go to the federal tribu-
nals, as soon as the judiciary system is fully es-
tablished ?
By the documents quoted by the gentleman from
Kentucky, it appears that more business had been
lately done in the federal courts than in any other
antecedent time, except in one or two counties in
Pennsylvania.
Besides, said Mr. M. even if there be not a great
pressure of business, had we not better pay the
paltry sum of thirty or forty thousand dollars for a
I system too broad, than have one that is too narrow?
35
fflSTORY OF CONGRESS.
36
Senate.
Judiciary System,
January, 1802.
Is it not a melancholy considerfttion, that in
many of the European States, the costs are equal
to the principle contended for? It would be hon-
orable to the United States to exhibit a different
example. Jt would be honorable to them to hold
out an example, even if confined to foreigners, of
prompt and efficacious iustice, though at the ex-
pense of $100,000. Such an example would be a
cause for national triumph, and our people would
exult in it.
Inasmuch, therefore, as to render the judges
respectable, it was necessary to make their ap-
pointments permanent; as time, labor, experience,
and long study, were required to perfect any man
in a knowledge of the laws of his country; inas-
much as it has been thought good policy, that the
judges should be well paid, and that they should
he so placed as to be divested of all fear, and nei-
ther to look to the right nor left; inasmuch as
they should be so placed as to render them inde-
pendent of Legislative as well as of Executive
power; he hoped thii law would not be repealed.
These were the reasons which Mr. M. assigned
as those which would influence his decision. He
acknowledged, that he had not entered the House
prepared to offer his sentiments; but, as the ques-
tion was about to be put, he had thought it best to
offer them, such as they were, rather than to give
a silent vote on a subject of such great importance.
Mr. Wright, of Maryland, said it must be
agreed that the subject was one of great import-
ance, from its effect upon our revenues. It the
repeal of the act of last session was Constitutional,
he presumed there could be little doubt of its
expedieiicy, from the documents on our table.
Has the Constitution vested the Legislature with
a power over the subject of the resolution? If so,
then should a law, wnich had been the effect of a
flux of passion, be repealed by a reflux of reason.
He believed that it had been introduced at the
period of an expiring administration. It had been
resisted by the republican side of the Senate, and
he trusted that now, on the return of reason, it
would be repealed.
An allusion has been made to the State of Ma-
ryland, which had repealed a law respecting the
judiciary. Mr. W. here quoted the constitution
of that State, whose provisions, he observed, so
far as respected the tenure of the office of a juage,
corresponded with those of the Constitution of the
United States. The Legislature of that State had
been of opinion, and correctly too, that they did
possess the power of repealing a law formed by
their predecessors. And the Legislature of the
United States possessed the same power. This
they had already determined by the very act of
the last session, which, while it created a number
of new judges, abolished the offices of several dis-
trict judges.
It was clear that the Constitution meant to
guard the officer and not the office. Will it be
said that what the Legislature makes to-day, can-
not be annihilated to-morrow? Even as to the
judges of the Supreme Court, had not the law first
constituted six, and was it not now by law reduc-
ed to five? And if Congress has power to reduce
the number of the superior, have they not the same
power to reduce the number of the inferior judges?
Are we to be eternally bound by the follies of a
law which ought never to have oeen passed ?
Why the expression in the Constitution, ^' The
^ judicial power shall be vested in such inferior
^ courts as Cooffress may, /rom time to time, ordain
^ and establish," if it had been intended, as is now
contended, that the office being once bestowed, no
change can be made?
If the case of those who have accepted those
offices, be considered as a hard one, may it not be
said tnat they knew the Constitution, and the
tenure by which their offices were to be held ? In
our regard for individual interest, we ought not to
sacrifice the great interests of our country; and
was it not demonstrable that, if twenty -one judges
were sufficient when twelve hundred suits existed,
they were equally so when there were no more
than seven hundred ?
The gentleman from Massachusetts was wrong
in stating that Maryland was the only State that
had repealed a law creating judiciary offices.
Virginia, if he was not misinformed, had done the
same thing. But he wanted not these precedents.
Our own archives furnished us with abundant pre-
cedents. We had reduced the judges of the Su-
preme Court from six to five ; we had annihilated
two districts. The very gentlemen opposed now
to the repeal of this law, had voted for these
measures. Thus it appeared, that, though the
Constitution justified the measure tJieUj it prohib-
ited it now !
Believing the Judiciary law of the last session
had arisen from a disposition to provide for the
warm friends of the existing Administration ; be-
lieviog that great inconveniences had arisen under
it; believing its expense to be oppressive; and
believing that if one Legislature had a ri^ht to
pass it; another Legislature had the same right to
repeal it; he trusted that, however a preceding
Legislature might have been governed by pas-
sion, the present Legislature would, by repealing
it, show tnat they were governed by reason.
Mr. Morris, of New York. — Mr. President, I
am. so very unfortunate, that the arguments in
favor of the motion have confirmed my opinion
that the law to which it refers ought not to be re-
pealed. The honorable mover has rested his prop-
osition on two grounds:
1st. That the Judiciary law passed last session
is unnecessary ; and,
2dly. That we have a right to repeal it, and
ought to exercise that right.
The numerical mode of argument made use of
to establish his first point is perfectly novel, and
commands my tribute of admiration. This is the
first time I ever heard the utility of the courts of
justice estimated by the number of suits carried
before them. I have read that a celebrated mon-
arch of England, the great Alfred, had enacted
such laws, established such tribunals, and organ-
ized such a system of police, that a purse of gold
might be hung up on the highway without any
danger of being taken. Had the nonorable gen-
tleman from Kentucky existed in those days, he
37
HISTORY OF CONGRESS.
38
January, 1802.
Judiciary System,
Senate.
^vfrould, perhaps, have attempted to convince old
Alfred that what he considered as the ^lory of his
reign was its greatest evil. For, by taking the un-
frequency of crimes as a proof that tribanals were
unnecessary, and thus boldly substituting effect
for cause, tne gentleman might demonstrate the
inutility of any institution by a system of reason-
ing the most fallacious.
%ut, sir, if, with that poor measure of ability
which it has pleased God to five me, I march on
that ground which I have been accustomed to
deem solid, I should say that, in so far as the ter-
ror of our Judicial institutions prevented the per-
petration of crimes, in that same degree are those
institutions useful. This would be my mode of
reasoning, but for the wonderful discover/ made
by the honorable mover of the resolution.
We have been told of the great expense of the
Judiciary— that it amounted to $137,000. And
thus attributing the whole expense of the estab-
lishment to this particular law, it has be;pn assumed
in argument that to repeal the law would save
$137,000. If the other arithmetical arguments of
the gentleman were equally incorrect, his infer-
ences will be entitled to but little attention.
Of this sum, it appears, from a report of the
Secretary of the Treasury, that $45,000 are for
the contingent expenses of jurors, witnesses, dbc,
which serves in some measure to show that it is
expected much business will be actually done.
The expense arising under this law, that it is
proposed to repeal, amounts to thirty thousand
dollars, exclusive of fifteen thousand dollars esti-
mated for contingent expenses, making, together,
forty-five thousand dollars. But let us not stint
the allowance ; throw in a few thousand more,
and let the whole be stated at fifty-one thousand ;
apportion this sum among the people of the Unit-
ed States, according to the census lately taken,
and you will find that each individual will pay
just one cent. And for this insignificant saviD?
of a cent a man, we are called upon to give up all
that is valuable to a nation.
One of the great purposes of a Government is
to secure tbe people from foreign invasion. To
be ready to repel such invasion requires a great
revenue, and many officers become necessary to
collect it. Such an invasion, however, may or
may not take place. If I judge from certain doc-
uments laid before us, those who administer our
affairs have but little apprehension of that event.
If, then, there be little or no such danger, or if the
people oe sufficiently secured against it, what else
have they a right to ask for m return for their
money expended in the support of Government ?
They have a right to ask for the protection of the
law m proper courts of justice, to secure the weak
against the strong, the poor against the rich, the
oppressed against the oppressor. And is this little
which they ask to be denied ? Are the means by
which the injured can obtain redress to be cur-
tailed and diminished? Much may be feared
from armies. They may turn their swords against
our bosoms; they may elevate a Chief to despotic
power. But what danger is to be apprehended
from an army of judges ?
Gentlemen say, recur to the ancient system.
What is the ancient system? Six judges of the Su-
preme Court to ride the circuit of America twice
a year, and sit twice a year at the seat of Govern-
ment. Without inquiring into the accuracy of a
statement made bv the geatleman respecting the
courts of England, in which, I apprehend, he will
find himself deceived, let me ask what would be
the effects of the old system here ? Cast an eye
over the extent of our country, and a moment's
consideration will show that the First Magistrate,
in selecting a character for the bench, must seek
less the learning of a jud^e than the agility of a
post-boy. Can it be possible that men advanced
m years, (for such alone can have the maturity of
judgment fitting for the office;) that men educat-
ed in the closet — men who, from their habits of
life, must have more strength of mind than of
body; is it, I say, possible that such men can be
running from one end of the continent to the
other? Or, if they could, can they find time to
hear and decide causes ? I have been told bv men
of eminence on the bench, that they could not
hold their offices under the old arrangement.
What is the present system ? You have added
to the old judges seven district and sixteen circuit
judges. What will be the effect of the desired
repeal? Will it not be a declaration to the re-
maining judges that they hold their offices subject
to your will and pleasure? And what will be
the result of this ? It will be, that the check es-
tablished by the Constitution, wished for by the
people, and necessary in every contemplation of
common sense, is destroyed. It had been said,
and truly, too, that Governments are made to pro-
vide against the follies and vices of men. For
to suppose that Grovernments rest upon reason is
a pitiful solecism. If mankind were reasonable,
they would want no Government. Hence, checks
are required in the distribution of power among
those who are to exercise it for the Denefit of the
people. Did the people of America vest all pow-
ers in the Legislature ? No ; they had vested in
the judges a check intended to be efficient-^a
check of the first necessity, to prevent an invasion
of the Constitution by unconstitutional laws-^-a
check which might prevent any faction from in-
timidating or annihilating the tribunals them-
selves.
On this ground, said Mr. Morris, I stand to ar-
rest the victory meditated over the Constitution
of my country ; a victory meditated by those who
wish to prostrate that Constitution for the further-
ance of their own ambitious views,- Not of him
who had recommended this measure, nor of those
who now urge it ; for, on his uprightness and their
uprightness, I have the fullest reliance ; but of
those in the back-ground who have further and
higher objects. These troops that protect the out-
works are to be first dismissed. Those posts which
present the strongest barriers are first to be taken,
and then the Constitution becomes an easy prey.
Let us then, secondly, consider whether we
have constitutionally a power to repeal this law.
f Here Mr. Morris quoted the third article and
first section of the Constitution.] I have heard a
39
HISTORY OF CONGRESS.
40
Senate.
Judiciary System,
January, 1802 .
verbal criftcism about the words sliall and may,
which appeared the more unnecessary to me, as
the same word, shaUj is applied to both members
of the section. For it says " the judicial power,
&c. shall be vested in one Supreme Court and
such inferior courts as the Congre'ss may, from
time to time, ordain and establish." The Legisla-
ture, therefore, had, without doubt, the right of de-
termining, in the first instance, what inferior courts
should be established ; but when established, the
words are imperative, a part of the judicial power
shall vest in tbem. And '' the judges shall hold
their offices daring good behaviour." They shall
receive a compensation which shall not be dimin-
ished during their continuance in office. There-
fore, whether the remarks be applied to the tenure
of office, or the quantum of compensation, the Con-
stitution is equally imperative. After this expo-
sition, gentlemen are welcome to any advantage
to be derived from the criticism on shall and m>ay.
But another criticism, which, but for its serious
effects, I would call pleasant, has been made : the
amount of which is, you shall not take the man
from the office, but you may take the office from
the man ; you shall not drown him, but you may
sink his boat under him ; you shall not put him
to death, but you may take awa^r his life. The
Constitution secures to a judge his office, says he
shall hold it, that is, it shall not be taken from him
during good behaviour; the Legislature shall not
diminish, though their bounty may increase, his
salary ; tne Constitution provides perfectly for the
inviolability of his tenure; but yet we may de-
stroy the omce which we cannot take away, as if
the destruction of the office would not as effec-
tually deprive him of it as the grant to another
person. It is admited that no power derived from
the Constitution can deprive him of the office, and
yet it is contended that by repeal of the law that
office may be destroyed. Is not this absurd ? It
had been said, that whatever one Legislature can
do another can undo ; because no Legislature can
bind its successor, and therefore that whatever
we make we can destroy. This I deny, on the
gjround of reason, and on that of the Constitu-
tion; What ! can a man destroy his own chil-
dren ? Can you annul your own compacts? Can
you annihilate the national debt ? When you have
by law created a political existence, can you, byre-
pealing the law, dissolve the corporation you had
made ? When, by your laws, you give to an indi-
vidual any right whatever, can you, oy a subsequent
law, rightfully take it away 1 No. When you
make a compact you are bound by it. When you
make a promise you must perform it. Establish
the contrary doctrine, and what follows? The
whim of the moment becomes the law of the land ;
your country will be looked upon as a den of rob-
bers; every honest man will fly your shores.
Who will trust you, when you are the first to vio-
late your own contracts ? The position, therefore,
that the Legislature may rightfully repeal every
law made by a preceding Legislature, when test-
ed by reason, is untrue ; and it is equally untrue
when compared with the precepts of the Consti-
ution; for, what does tne Constitution say?
" You shall make no &r post facto law." Is not
this an ea: post facto law?
Gentlemen^ say the system of the last session is
mere theory.* For argument sake, it shall be
granted ; and what then is the language of reason ?
Try it; put it to the test of experience. What
respect can the people have for a Legislature that,
without reflection, meets but to undo the acts of
its predecessors ? Is it prudent, is it decent, even
if tne law were unwise, thus to commit our repu-
tation and theirs ? Is it not highly dangerous to
call upon the people to decide which of us are
fools, lor one of us must be ?
And what would be the effect on the injured
man who seeks redress in a court of justice, and
whom, by this repeal, you shall have deprived of
his right ? You have saved him a miserable cent,
and you have perhaps utterly ruined him.
But the honorable mover of the resolution has
told us not only what is, but what is to be. He
has told us not only that suits have decreased,
but that they will decrease, and, relying on this
preconception, informs us that the internal taxes
will be repealed; and grounds the expediency of
repealing the judiciary law, on the annihilation
of these taxes. Thus, taking for granted the non-
existence of a law that yet exists, he infers from
its destruction, and the consequent cessation of
suits under it, the inutility of the judicial estab-
lishment. And when he has carried his present
point, and broken down the judiciary system, he
will tell us. perhaps, that we may as well repeal
the internal taxes, because we have no judges to
enforce the collection of them.
But what will be the effect of these repeals, and
of all these dismissions from office? I impeach
not the motives of gentlemen who advocate this
measure. In my heart I believe them to be up-
right. But they see not the consequences. We
are told the States want, and ought to have, more
power. We are told that they are the legitimate
sources from which the citizen is to derive pro-
tection. Their judges are, I suppose, to enforce
our laws. Judges appointed by State authority,
supported by State salary, and looking for promo-
tion to State influence, or dependent upon State
party. There are some honorable gentlemen now
present, who sat in the Convention which formed
this Constitution. I appeal to their recollection,
if they have not seen the time when the fate of
America was suspended by a hair? my life for it,
if another convention be assembled, they will
part without doing anything. Never, in the flow
of time, was there a moment so propitious, as that
in which the Convention assembled. The States
had been convinced, by melancholy experience
how inadequate they were to the management oi
our national concerns. The passions of the peo-
ple were lulled to sleep ; State pride slumbered ;
the Constitution was promulgated ; and then it
awoke, and opposition was formed ; but it was in
vain. The people of America bound the States
down by this compact.
One great provision of the Constitution — a pro-
vision that exhibited the subliiqps spectacle of a
great State bowing before the tribunal of justice
41
HISTORY OF CONGRESS.
42
January, 1802.
Apportionment Bill,
Senate.
is gone ! Aoother great bolwarkls now to be re-
moved. You are told you must look to the States
for protection ; your internal revenues are to be
swept awav ; your sole reliance must rest upon
commercial duties. In this reliance you will be
deceived. Bat what is to be the effect of all these
changes ? I am afraid to say ,* I will leave it to
the feelings and consciences of gentlemen. But
remember, the moment this Union is dissolved,
we shall no longer be governed by votes.
Examine the annals of history. Look into the
records of time, see what has been the ruin of
every Republic. The rile love of popularity. Why
are we here? To save the people from their most
dangerous enemy ; to save them from themselves.
What caused the ruin of the Republics of Greece
and Rome ? Demagogues, who, by flattery, gain-
ed the aid of the populace to establish despotbm.
But if you will shut your eyes to the light of his-
torv, and your ears to the voice of experience, see
at least wnat has happened in your own times.
In 1789, it was no longer a doubi with enlight-
ened statesmen, what would be the event of the
French Revolution ; before *the first of January,
1790, the only question was, who would become
the despot. The word liberty, indeed, from that
day to this, had been sounded in our ears, but
never had any real existence; there is nothing
left but the word.
We are now about to violate the Constitution.
Once touch it with unhallowed hands ; sacrifice
but one of its provisions, and we are gone. We
commit the fate of America to the mercy of time
and chance.
I hope the honorable gentleman from Maryland
will pardon me, if, from the section of the law
which he has cited, I deduce an inference diamet-
rically opposite to that for which he has contend-
ed. He nas told us that " the last Congress, in re-
' ducing the judges of the Supreme Court from
' six to five, have exercised the right which is
' now to be used, and made a legislative constrtic-
' tion of this clause in the Constitution." But
look at the law ; it declares that this reduction
shall not be made until, by death or resiffoation,
only five judges shall remain. Thus, in tne very
moment when they express the opinion, that five
judges are sufficient, they acknowledge their in-
competency to remove the sixth judge, and there-
by make the Legislative declaration, that they
had not the right now contended for.
Mr. M. here noticed some other remarks which
had fallen from the gentleman from Maryland,
(Mr. Wright,) on the construction of the Consti-
tution ; and concluded by recapitulating his argu-
ments. A contract, said he, is made between the
Government and the Judiciary ; the President ap-
points ; the Legislature fixes his salary ; he accepts
the office ; the contract is complete. He is then
under the protection of the Constitution, which
neither the President nor Congress can infringe.
The contract is a solemn one. Can you violate
it ? If you can you may throw the Constitution
into the flames — it is gone — it is dead.
When Mr. Morris had concluded his remarks,
the Senate adjourned.
MoNOAY, January 11.
The following Message was received from the
President or the United States :
Gentlemen of the Senate, and
of the House of Represeniativee .•
I now communicate to you a memorial of the Com-
misbioners of the City of Washington, together with a
letter of later date, which, with the memorial of Janu-
ary 28, 1801, will possess the Legislature fully of the
state of the public interests and of those of the City of
Washington confided to them. The moneys now due,
and soon to become due, to the State of Maryland, on
the loan guarantied by the United States, call for an
early attention. The lots in the city which are charge-
able with the payment of these moneys are deemed not
only equal to the indemnification of the public, but to
insure a considerable surplus to the city, to be employ-
ed for its improvement; provided they are offered for
sale only in sufficient numbers to meet the existing de-
mand. But the act of 1796 requires that they shall
be positively sold in such numbers as shall be necessa-
ry for the punctual payment of the loans. Nine thou-
sand dollars of interest are lately become due ; three
thousand dollan quarter-yearly will continue to be-
come due ; and fifty thousand dollars, an additional
loan, are reimbursable on the first day of November
next. These sums would require sales so &r beyond
the actual demand of the market, that it is apprehend-
ed^that the whole property may be thereby sacrificed,
the public security destroyed, and the residuary inter-
est of the city entirely lost Under these circumstan-
ces I have thought it my duty, before I proceed to di-
rect a rigorous execution of the law, to submit the sub-
ject to the consideration of the Legislature. Whether
the public interest will be better secured in the end,
and that of the city saved, by oflering sales commen-
surate only to the demand at market, and advancing
from the Treasury, in the first instance, what these
may prove deficient, to be replaced by subsequent sales,
rests for the determination of the Legislature. If in-
dulgence for the funds can be admitted, they will prob-
ably form a resource of great and permanent value ;
and their embarrassments have been produced only by
overstrained exertions to provide accommodations for
the Government of the Union.
TH : JEFFERSON.
jAirvARt 11, 1802.
The Message and papers therein referred to
were read, and referred to Messrs. Tracy, Wright,
and Howard, to consider and report thereon.
The Senate proceeded to consider ^he amend'
ments reported by the committee to whom was
referred the bill, entitled ^' An act concerning the
library for the use of both Houses of Congress,"
and the amendments, with further amendments,
were adopted.
The bill was then read the third time and pass-
ed, as amended.
APPORTIONMENT BILL.
The Apportionment bill, as received from the
House of Representatives, was taken up. This
bill fixes the ratio of representation at one mem-
ber for every 33,000 persons in each State.
Mr. Wells moved to strike out 33.000, his ob-
ject being to introduce 30,000, for wtiich he as-
signed his reasons at some length.
43
HISTORY OF CONGRESS.
44
Senate.
Apportionment Bill.
January, 1802 -
On this motion a debate of some length ensued,
in which the provisions of the bill as they stood
were supported by Messrs. Jackson, Mason,
Wright, and Cocke; and opposed by Messrs.
Wells and Hillhouse.
Mr. White, of Delaware.— Believing as I do,
sir, that the minds of gentlemen on this floor are
thoroughly made up as to the present subject, and
that any observations now to be offered will not
influence a single vote, but merely occupy the time
of the Senate to no useful purpose, I shall ask your
indulgence but a few moments. I cannot, sir, sit
quietly and see this bill reported by your commit-
tee, meditating as it certainly does a manifest in-
jury to the State I have the honor in part to rep-
resent, pass into a law, without doing more than
oppose to it a silent negative; without holding up
my voice and protesting most solemnly against
the extreme injustice of the measure. If. sir, this
bill passes in its present shape, there will be left
in the State of Delaware twenty-eight thousand
eight hundred and eleven people unrepresented in
the popular branch of their Legislature. Gentle-
men may say, that this is only a fraction, and that
in a e^eneral apportionment of representation, frac-
tional numbers are unavoidable. Sir, I acknowl-
edge it is only a fraction, but it is a fraction that
includes one-naif the population of that State, and
amounts, even upon the present contemplated
Slan. to within four thousand of the number suf-
cient to gain another Representative. Sir, twen-
ty-eight or thirty thousand would, to one of the
large States, be an inconsiderable fraction. Ap-
portion that number, for instance, among the
twenty-one Representatives from Virginia, and
you give to each member but a fraction of about
thirteen hundred ; whereas from Delaware, there
will be but one representative, and over and above
his legal number a fraction of near twenty-nine
thousand ijeople unrepresented. Is this fair, sir ?
Is this equitable ? I ask, gentlemen, is it not un-
friendly and wrongful ? And can it be possible,
sir, that the transcendent omnipotence of a ma-
jority have fated, if I may use the expression, this
injustice upon a sister State ? Suppose, sir, Dela-
ware to have but one Representative 'and Virgi-
nia twenty, a fraction of five thousand to the for-
mer is equal to a redundant number of one hun-
dred thousand to the latter ; or take, sir, the pres-
ent case, and you will find that the fraction of
twenty-nine thousand in the State of Delaware,
apportioned upon the representation, is at least
equal to a redundant number in the State of Vir-
ginia of three hundred thousand. If, sir, the divi-
sor is fixed at thirty thousand, Delaware will have
two Representatives; her weight, then, in the
other House, will^ in relation to Virginia, be as
one to twelve, but if she is compelled to submit to
the divisor of thirty-three thousand, you allow
her but one Representative; you deny her nearly
one-half her rightful influence, and place her on
the floor of the House of Representatives in a rel-
ative situation toward Virginia, as one to twenty-
one. Sir, an additional Representative to any of
the larger States is not of the same consequence
as anotner would be to Delaware. To Virginia,
for instance, one is but the twentieth part of her
force, to Delaware it would be one-half her force-
Gentlemen may say that Delaware is the small-
est State; but let it be remembered, sir, that her
rights are equally sacred with those of the largest
States ; and although her citizens are not so nu-
merous, yet, sir, their State sovereignty and other
Constitutional rights are quite as dear and valua-
ble to them, as the blessing can be to any other
people ; and. let me add, sir, she is among the old-
est States ; ner history travels back through the
bloody scenes of your Revolution; she dates her
era at your Declaration of Independence, and I
am proud to say, and can do so without detract-
ing from her neighbors, in proportion to her pop-
ulation, her resources, and extent, during the se-
vere contest for American liberty, she contributed,
in blood and treasure, as freely to its support and
permanent establishment, as any State in the
Union.
But, Mr. President, there is another point of
light in which I must be permitted to present the
glaring injustice of this measure. By the Con-
stitution of the United States, taxation is not ap-
portioned among the respective States according
to representation, but according to population.
Delaware, then, although in the House of Repre-
sentatives, where the money affairs of our couji-
try are principally managed, she has but one mem-
ber, and Virginia twenty-one, is not taxed to the
amount only of the twentieth part of the taxes of
Virginia, according to representation, but to the
amount of the twelfth part of the taxes of that
Slate, according to population. Thus, sir, nearly
one-half the citizens of Delaware are obliged to
pay their proportion of taxes to the support of
your Government, when you allow them no voice
in either laying and disposing of those taxes, or,
what is perhaps even more material, in pointing
out the objects of taxation. Their situation may,
in some respects, be likened to a very memorable
grievance once heavily complained of in this
country, when the Parliament of Great Britain
arrogated to themselves the right of taxing our
fathers without their consent.
Sir, the doctrine urged by some s^entlemen that
the divisor of thirty thousand will increase the
House of Representatives to a body too large and
unwieldy for the convenient and ordinary pur-
poses of business, seems to me totally wiinout
foundation. The observation and experience of
every man must be sufficient at once to satisfy
him that this cannot be the consequence ; we have
before our eyes, sir, examples that prove directly
the reverse. This divisor will give to your House
of Representatives but one hundred and fifty-
seven members; the State of Virginia has in the
popular branch of her Legislature one hundred
and eighty members, and we have not been told
that it is too numerous. The British House of.
Commons, before the union with Ireland, consist-
ed of about five hundred and fifty members, and
we heard no complaint of the numbers; on the
contrary, sir, the nation wished a fuller represent-
ation ; and it is from that House, too, sir, that, ac-
cording to this logic, must be so extremely riot-
45
HISTORY OF CONGRESS.
46
January, 1802.
Judiciary System.
Senate .
ous and disorderly, we lave drawn most of the rules
that govern the proceecngsof this honorable body.
Again, sir, the natut and spirit of your Gov-
ernment requires a full representation m the Le-
gislature. It is a Grov^nment that must depend
alone for its support i^on the afifections oi the
people ; and the best security for their affections
IS to extend to them, upta as large a scale as com-
ports with the public saiy, the freedom of choice,
and right of represent^on. In so extensive a
country as this, many prts of which are thinly
inhabited, and the electin districts consequently
including vast tracts ofterritory, it must often
happen tnat the electors i^ entirely unacquainted
with the person for who^ they vote ; but if you
increase the representatici, you reduce the size of
the election districts^ y<l bring the candidate
within the very neighUhood of the electors;
thev see him, they know Im ; they are better en-
blea to estimate truly his haracter, and judge of
his capacity and disposition to serve them. This,
sir, will secure, in a great egree, the constituent
from imposition, and attacho the Representative
a higher and more immettite respoDsibility ; it
will inspire the people wit confidence in vour
Government, and induce th«i more cheerfully to
acquiesce in your laws. Bt, above all, sir, the
divisor of thirty thousand l^ves throughout the
United States a less aggregte of unrepresented
fractions than any^ divisor yo can take ; less, per-
mit me to say, sir, by one hodred and sixteen
thousand, than the one contemplated in the bill;
and I am sure gentlemen on ai sides of the House
wish the country as fairly rep^sented as possible.
To my mind this is a most exclusive argument
in favor of the divisor of thirt^jhousand.
I am told, sir, that this has een made a party
question; that party considerUons influence it.
what could have induced to tl^, is not for me to
say ; I will attribute no impro|r motives to auy
honorable gentleman, but it hanot pleased God
to bless me with sagacity enougito discover any-
thing in it that even savored ofj^irty. Sir, par-
ties nave already attained in thicountry a suffi-
cient height, not only for our hppiness but for
our safety ; and it argues but a pall regard for
the public good, to stamp everjr shject with that
complexion. If this question in^ves any sepa-
rate interests, they are those, sir,)f the smaller
and larger States. With the former, then, the
. cause I advocate is a common c^e, and I am
sure gentlemen will give it due con^eration, and
not suffer any party feelings, howe^r disguised,
to influence tnem. Sir. a doctrinihas of late
been publicly avowed, wnich I muste permitted
to notice, as, in my estimation, extremely hostile
to the rights of the smaller States ; i^s said that
the House of Representatives is not t^ir ground,
that they must look to themselves in le Senate,
and take care on this floor that sover^nties are
not destroyed. I hope gentlemen reprevnting the
smaller States will profit by this wajiing; it is
well worth their attention ; it comes, siifrom the
largest and most influential State in ik Union.
The point it leads to^ I presume not to^ay, and
fear, sir, even to conjecture. ,
The question was now taken on the motion to
strike out 33,000, and lost — ayes 11. noes 15.
Mr. Morris then moved, and Mr. Tracy sec-
onded the motion to add, after " one representa-
tive for every 33,000," the words "and one repre-
sentative for every fractional number of 27,000
persons;" The number 27,000 was used to avoid
a violation of the Constitution, which prohibits
the allotting to each State more representatives
than one for every 30,000. Thus, in the case of
Delaware, the ratio being 33,000, Delaware would
be entitled to one member for 3^,000, and one for
the fraction of 27,000 : both which numbers would
amount to 60,000; which last number entitled a
State to two members without violating the Con-
stitution. This motion was opposed by Messrs.
Wright and Anderson, and was lost — ayes 10^
noes 15.
On the question to agree to the final passage of
this bill, it was determined in the affirmative —
yeas 23, nays 5, as follows :
Yeas — Measra. Anderson, Baldwin, Breckenridge,
Brown, Chipman, Cocke, Colhoun, Dayton, Ellery,T.
Foster, Dwight Foster, Franklin, Howard, Jackson,
Logan, 8. T. Mason, J. Mason, Morris, Nicholas,
Sheafe, Stpne, Sumter, and Wright.
Nats — Messrs. Hillhouse, Olcott, Tracy, Wells,
and White.
The bill was then read a third time, and passed.
Tuesday, January 12.
The following Message was received from the
President op the United States :
Gentlemen of the Senate .*
I now communicate to you a letter from the Secre-
tary of State, enclosing an estimate of the expenses
which appear at present necessary for carrying into
effect the Convention between the United States of
America, and the French Republic, which has been
{>repared at the request of the House of Representa-
tives.
TH: JEFFERSON.
Jahuabt 12, 1802.
The Message and napers accompanying it were
read, and ordered to lie for consideration.
JUDICIARY SYSTEM.
The Senate resumed the consideration of the
motion made on the 6th instant, '^That the act of
Congress passed on the 13th day of February,
1801, entitled ^An act to provide for the more con*
venient organization of the Courts of the United
States,' ought to be repealed."
Mr. Jackson, of Georgia. — I rise with an im-
pression of awe on the present question; for we
must tread on Constitutional ground, which should
not be lightly touched on, nor too hastily decided.
Every step we take ought to be well examined,
and our minds convinced before we give that
vote which cannot be recalled, and which will
fix a principle on Legislative construction, which,
perhaps, will prevail as long as we remain a na-
tion.
In the early stage of this discussion, I had al-
most determmed to say nothing, and am at pres-
47
HISTORY OF -CONGRESS.
Senate.
Judiciary System.
Jandarv, 180S
ent determined not to say much; but a justification
of the vote I shall give, has impelled me to ofTer
my reasons for it to the State I represent; and I
have made up my mind, decidedly, to vote for the
resolution before you, if I cannot be otherwise con-
vinced.
I conceive, that as this subject requires from us
a legislative construction, that construction mav
as well, and indeed better, be now made; there wifl
undoubtedly hereafter be a clashing of powers. I
therefore think it is much better to decide it now,
when the iniury is felt, than to suffer it to take root
until it shall extort a different and more violent
decision than that of a deliberative body.
The reasons for the resolution have been so ably
stated, and strongly enforced, by the gentleman
from Kentucky who moved it. as to expediency,
and the burden of the expenses on the present
system, that I shall therefore say little about them.
The expenses, however, of the Judiciary estab-
lishment, I deem the least important consideration
attached to the subject. Yet. I do not agree with
the gentleman who has spoken, that the expense
is trifling. The gentleman from New-York had
held up the insignificancy of a cent a person, and
had told us of Alfred's purse, which no one dared
to take away. Let that gentleman calculate twelve
souls to a family, and he will see that each family
would pay twelve cents; a sum. however insigni-
ficant to the pocket of that gentleman, that might
furnish a comfortable meal to a poor family. With
the gentlenaan frona Kentucky, however, I contend
that the principle is as much settled by one cent
as by a million. And this observation becomes in-
calculably dangerous, if it is to be drawn into pre-
cedent on every new project or improper measure,
that it costs but a cent a person. And as to the
remarks about Alfred, I might retaliate upon the
gentleman, and say, that at that day twelve cents
miffht have been a year's salary for a judge.
We have been asked, if we are afraid of having
an army of judges? For myself, I am more afraid
of an army of judges, under the patronage of the
President, than of an army of soldiers. The for-
mer can do us more harm. They may deprive us
of our liberties, if attached to the Executive, from
their decisions; ^nd from the tenure of office con-
tended for, we cannot remove them; while the
soldier, however he may act, is enlisted, or if not
enlisted, only^ subsisted for two years; whilst the
judge is enlisted for life, for his salary cannot be
taken from him. [See 12th division, 8th Sect. 1st
Art. Constitution.] Sir, it is said these evils will
not happen. But what security have we for the
truth of^the declaration? Have we not seen sedi-
tion laws? Have we not heard judges crying out
through the land, sedition ! and asking those whose
duties it was to inquire, is there no sedition here?
It is true, the sedition law had expired with the last
Administration, and he trusted it would not exist,
or at least be acted on^ under the virtuous Jeffer-
son. But hereafter if it should exist, your judges,
under the cry of sedition and political heresy, may
place half your citizens in irons. I thank Goa,
that no such law now exists, or is likely to exist.
I thank €rod, that we are not now under the influ-
ence of an intolerant elegy, as is evident from
their abuse of the Preside t; and that we are not
under dread of the patraage of judges, is mani-
fest, from their attack on he Secretary of State.
And I trust, that we shalllong keep this patronage
off. bv not sanctioning th religious persecution of
the clergy on the one haid, nor the political vio-
lence oi the judfi;es on tie other.
But I will forbear maing any further remarks
of this kind, and go in> an examination of the
Constitutional grounds
[Mr. J. here quoted le third article, first sec-
tion of the Const! tutio.]
Here then, said he,are two tribunals. First.
the Supreme Court, tb creature of the Constitu-
tion, the creature of tb people; the other, the in-
ferior jurisdictionsj.thfcreature of the Legislature.
And notwithstanding he plav of gentlemen upon
the words shall andmay, they are in meaning
essentially different. The word shall, applied to
the Supreme Court, s imperative and command-
ing, while the woramayj applied to the inferior
courts, is discretionay, and leaves to the Legisla-
ture a volition to ac or not to act, as it sees fit.
Again, why are tb peculiar and exclusive pow-
ers of the SupremcCourt designated in the fol-
lowing section of te Constitution, but because
the Constitution cosidered that tribunal as abso-
lutely established : while it viewed the inferior
tribunals as depenent upon the will of the Legis-
lature ? And thatthis was the case was evident
from the conduct}f the Supreme Court on the
Sension act, whiclthat court had some time since
eclared unconstiitional ; and which declaration,
he was convincec would not have been hazarded
by an inferior triunal.
But does this onclusion rest on judicial pOT^er
alone ? Is it U' where else found under other
heads of ConstLitional power? Yes, sir, under
the Legislative lead of power, which is the first
srant of powermade by the Constitution. For
by the eighth action of the first article of the
Constitution, a^er enumerating the power of lay-
ing taxes, <&c.,t is declared in the ninth division
thereof, " to esend to constitute tribunals inferior
to the Suprece Court." Here, then, is a Legis-
lative power jiven expressly to that body, with-
out restriction or application to any other branch
of the Natioal Gc^ernment. Let those lawyers
who hear m decide on the construction oi all
grants or deds, if two grants be made in the same
deed to twdifferent powers or persons, if the first
does not exlusively vest ?
Is there single argument that can be assigned
to oppose his construction of the Constitution ?
Do not th observations of gentlemen, who insist
upon the ermanent tenure of the Judicial office.
Klace thecreature above its creator, man above
is God. ae model above its mechanic ? A good
mechani, when he constructs a machine, tries it;
and if if does not succeed, he either mends it or
throws 1 away. Is there not the same necessity
for actig in the same way with the inferior tri-
bunals f the Judiciary, which is no other than
the mahine of the Legislature?
But,jpon the principles of gentlemen, the law
49
HISTORY OF CONGRESS.
50
January, 1802.
Judiciary System.
Senate .
which creates a judge cannot be touched. The
moment it is passed, it exists to the end of time.
What is the implication of this doctrine? To
alter or amend what may greatly require altera-
tion or amendment, it is necessary to return to the
creator, and to inquire what this ci'eator is. My
principle is, that the creator is the people them-
selves; that very people of the United States
whom the &;entleman from New York had de-
clared ourselves to be the guardians of, to save the
people themselves from their greatest enemies;
and to save whom from destroymg themselves he
had invoked this House. Good God ! is it possi-
ble that I have heard such a sentiment in this
body? Rather should I have expected to have
heard it sounded from the despots of Turkey, or
the deserts of Siberia, than to have heard it ut-
tered by an enlightened legislator of a free coun-
try, and on this floor.
But, said Mr. J., let us examine how we are to
get at the creator. If the honorable gentleman
Tvill put us into the way of doing 'this with effect,
I will abandon all my arguments for this motion.
Look to the Constitution, and see how it is to be
amended. It can only be amended on the recom-
mendation of two-thirds of both Houses, or, on the
application of two-thirds of the States, a conven-
tion shall be called, who are to propose amend-
ments, afterwards to be ratified by three-fourths of
the States.
There is required first, then, two-thirds of both
Houses of Congress. Can this two-thirds be found
now, or is there any probability of its being found
for twenty years to come, who will concur in
making the necessary alterations in the Judiciary
system that are now, or may hereafter, be required?
On this subject there are as many opinions as there
are persons on this floor. I have indeed never
found two persons precisely agree. How, then,
can we expect three-fourths of the Legislatures of
the several States to agree when we cannot agree
among ourselves. There is, in fact, no amend-
ment which could reach the case, and exhibit to
view ail the requisite and necessary regulations
for such an extent of country. Such an attempt
must form a volume, a Constitution by itself, and
after all fail short of the object.
I am clearly, therefore, of opinion, that if the
power to alter tne Judiciary system vests not here,
It vests no where. It follows, from the ideas of
gentlemen, that we must submit to all the evils of
the present system, though it should exhibit all
the horrors of the Inquisition.
But, said Mr. J., gentlemen say the United
States embrace a vast extent of territory, from fif-
teen to seventeen thousand miles in lengtn. What
is the inevitable deduction to be drawn from this
fact? Why, that a system which is to apply to
this extent of country, embracing different laws
and different habits, will require frequent altera-
tions : whereas, if we are tied down to a system
of inferior tribunals once fofmed, we cannot even
touch the plan of the Judicial system of the little
District or Columbia. Nor can we touch the in-
ferior jurisdictions in the Northwestern Territo-
ry, or in the Mississippi Territory, in both of which
the systems were acknowledged to be adapted
only to present circumstances, and in the last of
which the rights of Georgia were implicated. It
follows, that whatever these rights may be, the
system is sacred ; and, as to the Mississippi Terri-
tory, if grounded on this doctrine, notwithstanding
the claim of Georgia, her jurisdiction is totally
lost. To revert to the sedition law. If the doc-
trine supported now were true, then, had the sedi-
tion law been incorporated as a system by itself,
an inferior tribunal, and officers been attached to
it, would it have been perpetually tacked to the
Constitution ? That law under which so many
of our citizens have been imprisoned for writings
and speakings ; and one, among others, for wishing
that the wadding of a gun had been lodged in a
certain Presidential part.
The gentleman had dwelt on the inconveniences
and evus of the old system, and had particularly
condemned that part of it, which, as he termed it,
had converted the judges into post-boys. But I
will appeal to the gentleman, if in England, where
so much more business is done, there are more
than twelve judges, and whether those judp^es do
not ride the circuit? And why shall our judges
not ride the circuits? Shall we have six ludges
sitting here to decide cases which require a Know-
ledge of tne laws, the morals, the habits, the state
of the property of the several States? Would not
this knowledge be much better obtained by their
riding the circuits, and in the States themselves,
making themselves acquainted with whatever re-
lates to them, and the cases of appeals to come
before them? It has been remaraed by a cele-
brated writer on the English Constitution, that
one of the greatest political evils that could befall
a people was the existence of large judiciary
bodies. To illustrate his ideas, he had instanced
the Parliaments of France. If the spirit which
last session gave existence to%ixteen new judges
crontinued, who could say by what number they
would be limited ? They might indeed soon be-
come, what they had been likened to, an armf of
judges.
I do not wish to be severe in my remarks on the
conduct of the late Administration. I admire the
private character of Mr. Adams. But I do be-
lieve the succession of his political acts tended
ultimately to accumulate in, and attach all pow-
ers to, a particular person or favorite family.
If I wished to bestow on Mr. Jefferson this mass
of patronage, which I contend this horde of officers
bestows, I should be in favor of the bill that it is
now moved to repeal ; but, as a political person, I
am no more for Thomas Jefferson than for John
Adams. When he acts, according to my opinion,
ri^ht, I will support him ; when wrong, oppose
him ; and I trust a majority on this floor will act
in the same way.
A gentleman from Massachusetts has asked if
suits will go on diminishinj^, and if the millenium
is so-near at hand? Sir, different opinions are held
on this subject ; for some suppose the millenium
to have arrived long since, and others that it may
arrive, and others again that it never would arrive ;
I but there is one thing certain, that the more courts
51
HISTORY OF CONGRESS.
52
Senate.
Judiciary System,
January, 1802.
you have, the greater temptation there is for lili-
? Ration, and more suits, or rather evils, will flow
irom them. Law itself is but a necessary evil ; for
if mankind were perfect — were it not for their
frailties and passions — there would be no occasion
for it ; and lawyers are a still greater evil, although,
he acknowledged, a necessary one. They seldom
discourage litigious suitors, and swarm in our
courts ; and there are here, as well as in every
other country, persons so fond of law, and of per-
seciHtion, that rather than not be in courts at ail,
they would direct their lawyers, as I have been
formerly told of a man who applied for advice,
and was informed he had no ground of action, to
bring, then, a spite action. The Slate courts are
open and competent to most of the inferior court
business, and it ought to be thrown into that chan-
nel as much as possible.
With respect to the usefulness of the additional
judges, created by the act of last session, it was,
perhaps, unnecessary to add anything to what had
been so ably observed by the gentleman from Ken-
tucky. But I will state, for the information of the
Senate, that in the Southern States of Greorgia,
South and North Carolina, a ground of ^reat liti-
gation is removed, one which had originated at
least two hundred and fifty suits. Miller &, Co.
had obtained a patent for a ginning machine (God
knew where it came from, but I believe that nei-
ther of them invented it) so as to make those
States tributary to them, and embroil them in dis-
putes. South Carolina had purchased that patent
for $50,000, and had therefore dried up this source
of litigation in that State.
The recovery of British debts, too, was nearly
over. This had been a fruitful source of litigation.
Our citizens had been sued, and their late hard
earnings of property had been seized to satisfy
British demands, whilst their former property had
been taken from ihem by British arms during
the war.
I am surprised to hear the cry, that our liberties
and the Constitution are endangered, from the
quarter from whence it is now urged. When such
remarks had been made by those gentlemen with
whom I generally acted on former occasions, the
instantaneous cry was against demagogues, who,
by artfully inflaming the passions of tne people
against the Government, wished to break down
the Constitution.
A gentleman had talked about a victory medi-
tated over the Constitution. Not by the President;
not by us. By whom then was it meditated?
Was It by the House of Representatives? Or was
it by the people themselves — that same people
whom we were to save from their greatest enemy,
themselves? For my part, I believe in the medi-
tation of no such victory. Sooner, for my part,
than participate in it, by voting for this resolu-
tion, if I thought it would have such a tendency,
I would cut on my hand, or cut out my tongue.
I respect and love the Constitution, and my great
wish is, with father Paul, to cry out. as respects
it, eato perpetua,
Mr. Tracy, of Connecticut. — Feeble as I am,
I have thought it ray duty to offer my sentiments
on this subject. Owing to severity of indisposi-
tion I have not been in my place, nor have I heard
any of the discussion. This circumstance will be
my apology, if, in the remarks I shall miake, repe-
titions shall occur on the one hand, and apparent
inattention to arguments on the other.
Having been a member of this GoverDmem
during several years, and being impressed with
the difficulties attending the formation of a judi-
ciary system, I have thought proper to give a con-
cise history of Legislative proceedings on this im-
portant subject. Permit me to say, sir, that the
nrst institution of such a system must be an ex-
periment. It is impossible to ascertain until tried
the effects of a system co-extensive with the vast
territory of the United States, and which ought to
be adapted to the different laws and habits of the
different States.
Soon after the first law was enacted, as early as
the year 1793, and I believe sooner, complaints
were made of the system of circuit courts. The
Union then being divided into three circuits, and
two of the six judges were obliged to attend each
court, if one judge failed, all the business of course
was continued to the next term. Judges com-
plained of the distance they had to travel, and
suitors and lawyers complained of delays. In
1793, if my memory is correct, the law passed
allowing one judge to attend with the district
judge in each district, with some other modifica-
tions not important in the present view of the
subject. If, by reason of distance, badness of roads,
sickness, or any other accident, this one judge
failed of attendance, or if he and the district judge
differed on any point, a delay was occasion^.
If the same juage attended the same circuit at
the next term, another delay, and so on, till
experience taught us. that some alteration in the
svstem was requisite. It will be recollected, that
the judges had to travel over this extensive coun-
try twice in each year, and to encounter the ex-
tremes of both heat and cold. Of this they com-
plained ; but this was not all ; the business was
not done.
At several sessions of Congress, the subject of
the circuit courts was before them ; committees
were appointed in both Houses, and in more than
one communication of the Executive at the com-
mencement of sessions, a revision of the system
was recommended. I cannot, on memory, detail
the exact particulars, or order of time ; but in the
Speech made by the President at the opening of
the session of 1799, the subject is stated as follows:
" To give due effect to the civil administration of Got-
ernment, and to insure a just execution of the laws, a
revision and amendment of the judiciary system is in-
dispensably necessary. In this extensive country, it
cannot but happen, that numerous questions respecting
the interpretation of the laws, and the rights and du-
ties of officerb and citizens, must arise. On the one
hand, the laws should be executed — on the other, in-
dividuals should be guarded iiom oppression ; neither
of these objects is sufficiently assured, under the pre-
sent organization of the judicial department; I there-
fore earnestly recommend the subject to your serious
consideration."
53
HISTORY OF CONGRESS.
54
January, 1802.
Judiciary System,
Senate.
Although this subject had been recommended
before, and committees bad contemplated a revision
and alteration of the system, 1 do not remember
that a bill had ever been presented to either House
of Congress until 1799. In that session, a bill was
reported similar in its features to the act which
passed last session. It might have been acted upon
m the House of Representatives j of this however
I am not confident; but I recollect it was printed.
aod the members of both Houses had it before them ;
and at the last session, with some alterations and
amendments, it was enacted into a law. I believe
all parties Mrished for a revision and amendment
of tne system, in respect to circuit courts; the dif-
ference of opinion was principally this : some sup-
posed an increase of the judges of the Supreme
Court to such a number as would render the duties
of the circuit practicable for them, and provide for
the completion of business, would be the best
amendment; the others thought the law, as it
passed, was preferable.
I acKnowlege, that in deliberating upon this sub-
ject, we always assumed the principle, that the es-
tablishment of courts was important to protect the
rights of the people ; we did not fear an army of
judges, as has been hinted by the gentleman last
up, (Mr. Jacksou.) In this opinion we might be
mistaken, but we were honest in our professions.
Although some believed, that more of tne business
of the United States might be confided to the State
courts ; ^et it is not within my recollection, that
the question was considered in any measure a par-
ty question. I am confident, that at the session of
1799, and for a long time before that, the friends
of this law, which eventually passed last Winter,
could not, nor did not, contemplate any change of
administration. A revision of the system was long
a subject of deliberation; we believed an increase
of circuit judges, to the number requisite to perform
the duties, would be an inconvenient increase of
the Supreme Court ; and though it was desirable
for the judges of the Supreme Court to see the peo-
ple and be seen of them, yet the preference was
given to the sj^stem now proposed to be repealed.
We supposed it would be an evil to increase the
number of judges of the Supreme Court to thir-
teen, fifteen, orseventeen. A court which is to act
together, should not be numerous ; on this subject
all men have agreed ; here may be danger ot an
" army of judges." as the gentleman sa^s ; for al-
though in Great Britain the twelve judg^ are
sometimes called to eire an opinion, yet no man
will feel equal confidence in a tribunsd of judges
for the bu.siness of a court, consisting of many as
of few ; from three to five, the good sense and ex-
perience of all nations has declared to be about the
proper numbec; and we thought it conducive to
the general good, to establish tribunals in such
manner as to carry justice to the door of every
man.
In this modification of the system, the jurisdic-
tion of the circuit court has been extended, as it
respects the sum in demand, of which they are to
take cognizance, and as it respects the disputes
which arise concerning the title of lands; and
exc^sive jurisdiction is given of all crimes com-
mitted within fifty miles of their place of session.
The intention was, to insure a prompt execution of
justice, and experiment alone can test the wisdom
of the plan.
I take it to be a sound rule, adopted by all wise
and deliberate bodies, not to reneal an existing law,
until experiment shall have discovered errors, or
unless there is a vice so apparent on the face of the
law, as that justice shall require an immediate de-
struction of it. Has there been time to gain infor-
mation hj experiment ? No man will pretend this
as a justification of the repeal; for the little time
the law has been in force, so far as 1 have obtained
any knowledge upon the subject, it has gained
credit.
Another maxim in legislation. I think, is correct,
not to give up a law in existence, which is conver-
sant about extensive and important concerns of the
community, and about which there is a necessity
of enacting some law, without seeing clearly what
can be substituted for it, and that the substitute
has manifest ad vantages. This resolution leads to
no result, but a repeal. I have stated the errors of
the former system of circuit courts, and if expense
is an objection to the present system, as I have
heard urged out of doors, the same, or nearly as
much, must be incurred, if we increase the number
of judges of the Supreme Court, as to effect a re-
form in the Circuit Court. Why repeal this law
then, and leave us without any, or without any
adequate to its purpose ?
Is this system so very vicious, that it deserves
nothing but abhorrence and destruction 1 It costs
us a little more than thirty thousand dollars, and
by it the number of circuit judges is increased to
sixteen; andbv it like wise is contemplated reducing
the number or supreme judges to five, when it can
constitutionally be done. Is the expense an object,
when by that expense we extend the jurisdiction
of a court over this vastly extensive, growing coun-
trv. and carrjr law and protection to every man 7
This country is in a singular condition ; a^reattract
of unsettled lands is peopling with rapidity, and
numerous emigrations increase our population far
beyond its natural increase ; is it not of importance
that courts should be located amon^ them, early,
to correct the restless spirit which is frequent in
new and scattered settlements ? And are not the
emigrations composed of such as require the prompt
assistance of the law, to preserve among them reg-
ularity ? Punishment, to us, and to alrgood men,
should be a strange work ; but to prevent crimes,
is the work of a God. I speak to gentlemen, who
haye many of them graced the judge's bench, and
adorned the professional robe they have worn, and
am therefore not obliged to be particular that I
may be understood ; a word to the wise will be
sufficient. A judiciary, in a national point of view,
is absolutely necessary, and an extension of it to
every national purpose is equally necessary. To
depend upon State courts, not under obligations
nor amenable to you, besides having as much bu-
siness allotted to them by the respective States as
they can accomplish, and depending upon them,
and not on us, for existence — will require only to
be mentioned, to be exploded. Locating your
65
HISTORY OP CONGRESS.
66
Sbnate.
Judiciary System,
January. 1802.
judges in various parts of the country, by them
promulgating the Rational laws, which it is well
known has been a subject of great difficulty, and
giving them daily opportunity of mixing with peo-
ple, not well disposed to order and law ; may pre-
vent disorders and insurrections, and save millions
of expense, which pecuniary saving will be the
least of the important events arising from such a
system.
But it will probably be said, the courts have
not business to employ them; and the documents
received from the Executive will be produced in
evidence. And it may further be said, the Presi-
dent has in his Message recommended a repeal of
this law. The words of the Message are: "The
' Judiciary system of the United States, and espe-
' cially that portion of it lately erected, will of course
' present itself to the contemplation of Congress;
' and that they may be able to judge of the propor-
' tion which the institution bears to the business it
' has to perform, I have caused to be procured from
' the several States, and now lay before Congress,
' an exact statement of all the causes decided since
' the first' establishment of the courts, and of those
' that were depending when additional courts and
' judges were brought in to their aid."
Is this a recommendation to repeal? Suppose
for argument's sake it is. Let us look at this "ex-
act" statement. In the recapitulation, 19th page
of document 8, there appears to have been insti-
tuted 8,276 suits, and pending, when this court
went into operation, 1,539. But on further in-
spection it will be found, that Maryland is entire-
ly omitted; this omission is unaccountable, since
tne means of knowledge were so near at hand. —
119 causes undecided in Tennessee; 134 in North
Carolina, and 331 in Virginia, are omitted; mak-
ing iu the whole an error of five or six hundred
causes. In addition to this, the number of suits
in New York are not stated correctly by the state-
ment of the attorney when he made the return,
and not one is carried out as pending in the reca-
pitulation; and the return of Massachusetts is fn-
correct on its face; so that nothing more than con-
jecture can be derived from this "exact" state-
ment. The President is usually more correct,
and how this peremptory language in the Message
comports with the document, every man can see
for himself. I am not disposed to attribute inten-
tional error to any man, much less to the Ex-
ecutive ; but in point of use the statement amounts
to nothing ; we may just as w^U imagine without
it as with it, how many suits were pending at the
institution of the new courts.
But I acknowledge that the number of suits
pending is not in my mind any criterion upon
which a correct judj^ment may be formed of the
utility or necessity of courts ; or, to say the most of
it, it forms but one ground of judging, and that
not a very conclusive one. In a country thinly
settled it is frequently as important to establish
courts as in a more populous country ; and as this
Grovernment is situated^ it may be more so ; and
yet the number of suits will bear no proportion.
Why did we establish courts in our territorial gov-
ernment but on this principle 7
A number of courts properly located will keep
the business of any country in such condition as bat
few suits will be instituted ; and courts badly or-
ganized will discourage suitors, and there will
be but few actions returned. From the nuoiber
of suits alone, there can no sound judgment bf
formed.
But there is another objection to the repeal of
the judiciary law, which m my mind is conclu-
sive : I mean the letter and spirit of the Constitu-
tion.
In the formation of every Government, in which
the people have a share in its administration, some
estaDlisned and indisputable principles most be
adopted. In our Grovernment, the formation of a
Legislative, Executive and Judiciary power, is
one of the incontrovertible principles ; and that
each should be independent of the other, so far as
human frailty will permit, is equally incontrover-
tible. Will it be expected, that 1 should quote
Sidney, De Lolme, Montesquieu, and a host of
elementary writers, to prove this assertion 7 There
is probably no conflict of opinion upon this sub-
ject. When we look into our Constitution of
Government, we shall find, in every part of it^ a
close and undeviating attention to this principle.
Our particular form is singular in its requirements,
that full force and operation be given to this all
important principle. Our powers are limited, many
actj> of sovereignty are prohibited to the National
Government, and retained by the States, and many
restraints are imposed upon State sovereignty. If
either, by accident or design, should exceed its
powers, there is the utmost necessity that some
timely checks, equal to every exigency, should be
interposed. The Judiciary is established by the
Constitution for that valuable purpose.
In the British Gbvernment^ the legislature is
omnipotent to every legislative effect, and is a per-
petual convention tor almost every Constitutional
purpose. Hence it is easy to discern the different
part which must be assigned to the judiciary in
the two kinds of government. In England the
Executive has the most extensive powers; the
sword or the military force ; the right of making
war, and in effect the command of all the wealth
of the nation, with an unqualified veto to every
legislative act. It is, therefore, rational for that
nation to preserve their judiciary completely in-
dependent of their Sovereign. In the United
States, the caution must be applied to the existing
danger ; the Judiciary are to be a check on the
Executive, but most emphatically to the Legisla-
ture of the Union, and those of the several States.
What security is there to an individual, if the Le-
gislature of the Union or any particular State,
should pass a law, making any of his transactions
criminal which took place anterior to the date of
the law ? None in the world but by an appeal to
the Judiciary of the United States, where he will
obtain a decision that the law itself is unconstitu-
tional and void, or by a resort to revolutionary
principles, and exciting a civil war, With a view
to those principles, and knowing that the framers
of our Constitution were fully possessed of them,
let us examine the instrument itself. Article third,
57
HISTORY OF CONGRESS.
58
January, 1802.
Judiciary System.
Senate.
section first : *^ The judicial power of the United
^ States shall be vested in' one Supreme Court, and
' in such inferior courts as the Cong^ress may, from
" time to time, ordain and establish. The judges.
^ both of the supreme and inferior courts, snail
^ bold their offices during good behaviour; and
* shall, at stated times, receive for their services a
' compensation^ which shall not be diminished
' during their continuance in office." Are there
words m the English language more explicit ? Is
there any condition annexed to the judge's tenure
of office, other than good behaviour 1 Of whom
shall your judges be independent? We are led
to an erroneous decision on this, as well as many
other governmental subjects, by constantly recur-
ring to Great Britain. That their courts should
be independent of their Sovereiffn is an important
object ; he is the fountain of honor and power,
and can do no wrong ; our President, at least for
several years past, has been considered as the foun-
tain of dishonor and weakness, and if there was
any maxim upon the subject, it was that he could
do no right. Of course the great object of the in-
dependence of the Judiciary must here have refer-
ence not only to our Executive, but our Legisla-
ture. The Legislature with us is the fountain
of power. No po-son will say that the judges of
the Supreme Court can be removed, unless by im-
peachment and conviction of misbehaviour; but
the judges of the inferior courts, as soon as or-
dained and established, are placed upon precisely
the same grounds of independence with the judges
of the Supreme Court. Congress may take their
own time to ordain and establish, but the instant that
is done, all the rights of in dependence attach to them.
If this reason mg is correct, can you repeal a law
establishing an inferior court, under the Consti-
tution ? Will it be said, that although you can-
not remove the judge from office, yet you can re-
move his office from him ? Is murder prohibited,
and may you shut a man up. and deprive him of
sustenance, till he dies, and tnis not be denomina-
ted murder 7 The danger in our Grovernment is.
and always will be, that the Legislative body will
become restive, and perhaps unintentionalljr break
down the barriers or our Uonstitution. It is inci-
dental to man, an^ a jyart of our imperfections, to
believe that power may be safely lodged in our
hands. We have the wealth of the nation at com-
mand, and are invested with almost irresistible
strength; the judicierv has neither force nor wealth
to protect itself. That we can, with propriety,
modify our judiciary system, so that we always
leave the judges independent, is a correct and rea-
sonable position; but if we can, by repealing a
law, remove them, they are in the worst state of
dependence.
I have exhausted myself, and I fear, the patience
of the Senate, and regret exceedingly that my in-
disposition prevented me from a better preparation
upon this important question. I have attempted
to show, that the establishment of a judiciary sys-
tem for this country is, and must be, attended with
difficulties ; and tfaiat the Legislature have taken
such measures as to a majority of them appeared
most reasonable, after much attention to the sub-
ject, to cure the evils of the old system, by the
substitution of a new system.
And let it be remarked, that the law now under
consideration, although it modified our courts, is
strictly guarded against a violation of the princi-
ples I have here contended for. The Supreme
Court is to consist of but ^ve judges after the next
vacancy shall happen ; and the district judges of
Tennessee and Kentuckv are associated with a cir-
cuit judee, to perform the duties of circuit judges,
which duties it is well known they performed
ever since the district courts were established ;
and in the clause which increases their salaries,
they are styled the district judges ; and all the al-
teration made in their circumstances, is, an in-
crease of duty, and of salary. I have attempted
to show the primary necessity of rendering the
Judiciary of this confederated Government com-
pletely independent, not only of the Executive, but
especially so of the Legislature.
And by adverting to the words of the instru-
ment itself, I have attempted to show, that the
Judiciary are secured, so far as words can do it,
as well from a circuitous removal, by repealing
the law constituting the court of which they are
judges, as by an^ direct removal.
I am strongly impressed with the magnitude of
this subject ; perhap the whims of a sick man's
fancy have too much possessed me. to view it cor-
rectly ; but, sir, I apprehend the repeal of this law
will involve in it the total destruction of our Con-
stitution. It is supported by three independent pil-
lars; the Legislative, Executive and Judiciary ;
and if any rude hand should pluck either of them
away, the beautiful fabric must tumble into ruins.
The Judiciary is the centre pillar, and a support
to each by checking both ; on the one side is the
sword, and on the other is the wealth of the nation ;
and it has no inherent capacity to defend itself.
These very circumstances united, may provoke
an attack^ and which ever power prevails so far
as to vest in itself, directly or indirectly, the power
of tlie Judiciary^ by rendering it dependent, it is
the precise definition of tyranny, and must pro-
duce its effects. The Goths and Vandals destroy-
ed not only the Government of Rome, but the city
itself; they were savaees. and felt the loss of nei-
ther ; but if it be possible there can be an intention,
like the son of Manoah. with his strength, without
his godliness, to tumble this fabric to the earth,
let it be remembered it will crush in one undistin-
guished ruin, its perpetrators, with those whom
they may call their political enemies.
[ most earnestly entreat gentlemen to pause and
consider. I apprehend the repeal of this act will
be the hand-writing on the wall, stamping Mene
T^cel upon all we' hold dear ana valuable in our
Constitution. Let not the imputation of instabili-
ty, which is cast upon all popular bodies, be veri-
fied by us — in adopting laws to-day, and repealing
them to-morrow, tor no reason, but that we have
the powpr, and will exercise it. * -
This Constitution is an invaluable inheritance ;
if we make inroads upon it and destroy it, no mat-
ter with what intentions, it cannot lie replaced ;
we shall never have another.
59
HISTORY OF CONGRESS.
60
Senate.
Judiciary System.
Jandarv, 1802.
Wednesday, January 13.
THE JUDICIARY SYSTEM.
The Senate resumed the consideration of the
motion made on the 6th inst. that the act of Con-
gress passed on the 13th day of February, 1801,
entitled " An act to provide for the more conve-
nient organization ot the Courts of the United
States." ought to be repealed.
Mr. Mason, of Virginia. — I feel some degree of
embarrassment in offering my sentiments on a sub-
ject so fully and so ably discussed. I believe that
the ground taken by my friend from Kentucky
has not been shaken by any arguments urged in
opposition to the resolution on the table. Yet as
some observations have been made, calculated to
excite sensibility, not here, but abroad ; as they
appear to have oeen made with a view to that
end ; and as an alarm has been attempted to be
excited on Constitutional ground, I think the ob-
servations ought not to go unnoticed.
I a^ree with gentlemen, that it is important, in
a well regulated Government, that the judicial
department should be independent. But I have
never been among those wno have carried this
idea to the extent which seems at this day to be
fashionable. Though of opinion that each' depart-
ment ought to discharge its proper duties free from
the fear of the others, yet I have never believed
that they ought to be independent of the nation
itself. Much less have I believed it proper, or
that our Constitution authorizes our courts of jus-
tice to control the other departments of the Gov-
ernment.
All the departments of a popular Grovernment
must depend, in some degree, on popular opinion.
None can exist without the affections of the peo-
ple, and if either be placed in such a situation as
to De independent of the nation, it will soon lose
that affection which is essential to its durable ex-
istence.
Without, however, going into an inquiry of
what kind of organization is moet fit for our tri-
bunals ; without inquiring into the fitness of mak-
ing the judges independent for life, I am willing
to enter into a consideration, not of what ought to
be, but of what is. Whatever opinion I may in-
dividually entertain of the provisions of the Con-
stitution relative to the Judiciary, sitting here un-
der that Constitution, I am bound to observe it as
the charter under which we are assembled.
When I view the provisions of the Constitution
on this subject, I observe a clear distinction be-
tween the Supreme Court and other courts. I
am sensible that when we come to make verbal
criticisms, any gentleman of a sportive imagina-
tion may amuse our fancies by a play upon words.
But this is not the way to ^et rid of a genuine
construction of the Constitution. With regard to
the institution of the Supreme Court^ the words
are imperative ; while, with regard to inferior tri-
bunals, they are discretionary. The first shall, the
last may be established. And surely we are to
infer from the wise sages that formed that Con-
stitution, that nothing was introduced into it in
vain. Not only sentences, but words, and even
points, elucidate its mes^nine. When, therefore,
the Constitution, using this language, says a Su-
preme Court shall be established, are we not jus-
tified in considering it as of Constitutional crea-
tion ? And on the other hand, from the language
applied to inferior courts, are we not equally jus-
tified in considering their establishment as depend-
ent upon the Legislature, who may, from time to
time, ordain them, as the public good requires ?
Can any other meaning be applied to the words
^ from time to time V^ And nothing can be more
important on this subject than that the Legisla-
ture should have power, from time to time, to
create, to annul, or to modify the courts, as the
public good may require, not merely to-day, but
forever ; and whenever a change of circumstances
may suggest the propriety of a different organiza-
tion. On this point, there is great force in the re-
mark of the gentleman from Georgia, that among
the enumerated powers given to Congress, while
there is no mention made of the Supreme Court,
the power of establishing inferior courts is ex-
pressly grven. Why this difference, but that the
Supreme Court was considered by tne framers of
the Constitution, as established by the Constitu-
tion, while they considered the inferior courts as
dependent upon the will of the Legblature.
We find tne phrase, " from time to time,'' in an-
other part of the Constitution. The 3d section of
the 2d article says, the President shall, from time
to time^ give to the Congress information of the
state of the Union. That is, he shall occasionally,
as he sees fit, ^ive such information. So shall
Congress occasionally, as they see fit, establish
annual or regulate interior courts, accordingly as
the public welfare requires.
The arguments of gentlemen go upon a mis-
taken principle. They express the liveliest sym-
pathy and commiseration lor this poor, this weak
department of our Grovernment. They tell us the
judges have a vested right to their offices — ^a right
not now derived from the law, but from the Con-
stitution ; and they assimilate their case to that of
a public debt ; to the right of a corporation ; a
turnpike company, or a toll-bridge. But is not
all this reasoning predicated oh the principle that
the courts are established, not for the public bene-
fit, but for the emolument of th» judges ; not to
administer justice, but for their personal aggran-
dizement ? I believe that a Government ought to
proceed upon different principles. It ought to
establish only those institutions which the good of
the community requires; when that good ceases
to need them, they ought to be put down, and, of
consequence, the judges should hold their appoint-
ments so long; and no longer, than the public wel-
fare requires.
If the arguments now urged be correct, that a
court once established cannot be vacated, we are
led into the greatest absurdities. Congress might
deem it expedient to establish a court tor particu-
lar purposes, limited as to its objects or duration.
For instance : the United States has taken posses-
sion of the Mississippi Territory, rightfully or not,
I will not pretend to say. This territory nas been
heretofore m the hands of various masters, viz :
61
HISTORY OF CONGRESS.
&2
January, 1802.
Judiciary System,
Senate .
France, England, Spain, and Georgia ; and it is
now possessed by tn^ United States. All these
Gfovernments, except the United States, made cer-
tain grants of lands in the territory, and certain
settlers spread their conflicting patents oyer the
country. These different titles will open a wide
field for litigation, which will require able tribu-
nals to decide upon. Suppose, then. Congress
should establish special tribunals to continue for
three, four, or fiye years, to settle these claims.
Judges would be appointed. They would be the
judffes of an inferior court If the construction
of tne Constitution now contended for be estab-
lished, what would the judges say, when the
period for which they were appointed expired ?
Would they not say, we belong to inferior courts ?
Would they not laugh at you when you told them
their term of office was out? Would they not
say, in the language of the gentleman from New
York, though the law that creates us is tempora-
ry, we are in by the Constitution 1 Have we not
heard this doctrine supported in the memorable
case of the mandamus, lately before the Supreme
Court? Was it not there said that, though the
law had a right to establish the office of a lustice
of the peace, yet it had not a right to abridge its
duration to fire years; that it was right in mak-
ing the justices, but unconstitutional in limiting
their periods of office ; that, being a judicial offi-
cer, he had a right to hold his office during life —
or, what is the same thing — during good beha-
viour, in despite of the law which created him, and
in the very act of creation limiting his official life
to five years. ,
I may notice another case, more likely to hap-
pen, to show the absurdity of this construction.
Congress have assumed jurisdiction oyer the Mis-
sissipppi Territory, and have established a court,
composed of three judges, which court is as much
an inferior court as the circuit or district courts.
Of this jurisdiction Georgia denies the validity.
The contest is in a train of settlement. Suppose
it shall turn out that the United States are con-
vinced of the injustice of their claim, relinquish
it, and restore the territory to Georgia, what be-
comes of the judges ? Their offices, their duties,
are gone ! Yet they will tell you, we are vested
with certain Constitutional rights, of which you
cannot deprive us. It is true the territory is no
longer yours. You have no jurisdiction, and we
have no power, vet we are judges by the Consti-
tution. We hold our offices during good beha-
viour, and we will behave well as long as you will
let us. Is not this a strange si tuation ? You have
judges in a territory over which you have no ju-
risdiction ; and you have officers which are per-
fect sinecures, pensioners for life. Such an ab-
surdity I am sure the Constitution never meant to
justify. It is an absurdity equally repugnant to
the letter and the genius ot the Constitution.
Suppose another case. Suppose, what I trust
will never happen, a war should take place. Sup-
pose that a part of the United States should be
conquered, and that we should be compelled to
cede it to a foreign nation. In this district your
jurisdiction is gone ; your power is gone ; the of-
fice of a judge is destroyed^ and yet the officer
holds his appointment for life ; this case may be
considered as inapplicable to the United States.
It may be said that we have no right to cede a
State, or a part of a State. But I believe a dif-
ferent sentiment has been entertained, and per-
haps in this House.
But suppose this event to occur in relation to
territory not attached to a State. Suppose the
Government should find it necessary to establish
an inferior court in an island of Late Superior.
Suppose it should be the fortune of war to place
in the possession of the enemy, one of the States,
and the question shall bfe, will you give up this
territory in the frozen regions of the Lakes ; or
suffer the State to remain m the possession of the
enemy, you being unable to take it from him ? If
you give up the territory, your court is annihilat-
ed, yet the judges claim a tenure in their offices
for life ; and this in a country that no longer be-
longs to you : does not such a result strike every
mind as absurd ? Is it not apparent, that whatever
claim such men might have upon the generosity
of the Government, they can have no claim to
offices that do not exist? Nay, further, it might,
upon the construction now contended for, be in-
sisted that the Constitution forbids you to make
a peace upon those terms ; that by ceding an in-
consideraole territory which you did not want, to
secure a whole State, you would abolish the office
of a judge, which the Legislature had there erect-
ed; that this would be an express violation. of
your Constitution ; and therefore you must leave
a whole State in the possession of the enemy, un-
less this judge would give you leave to make terms
by resigning his office!
I believe, sir, that we should not differ much, if
we came to a proper understanding of the true
principle on which this question depends. If we
establish the principle that from the nature and
essence of the public institutions, they are made
for the good of the people, and not for that of the
individual who administers them, we shall expe-
rience no difficulty. Gentlemen, in speaking of
a judge, had emphatically called it his office. But
it is not his office, but the office of the people. He
is only the person appointed to perfo/m certain
services required by the public goocL and when
those services are no longer necessary for that pub-
lic good, his duties are at an end, his service may
be dispensed witb^ and he ought to retire to pri-
vate life.
The case had been assimilated to a bridge. But
he who builds a bridge does a public good, that
entitles him to a erowing remuneration forever.
But here the good is temporary. The truth is,
the jud^e is more like the man who collects the
toll, and who receives the promise of an annual
payment as lung as he discharges his duties faith-
lully. But a fiood comes, and sweeps away the
bridge. Will the toll-gatherer, like the judffe,
contend, that though the bridge is gone, and tne
owner ruined, that he shall, notwithstanding, re-
ceive his compensation for life, though he cannot
continue those services for which his annual sti-
pend was to be the compensation and reward ?
63
HISTORY OP CONGRESS.
64
Senate.
Judiciary System,
January, 18Ct2.
Bat it would seem that the argument urged on
this occasion, and the general course of our legis-
lation, had been grounded more on the convenience
and emoluments of those appointed to office than
on grounds of public utility. First, we appointed
six judges of the Supreme Court, divided the
United States into three circuits, two Judges to
ride each circuit, in which, with the district judge,
to form a court. The law fixed the duties and
the compensation, and gentlemen of the first char-
acter were ready to accept the places. The sala-
ries indeed iiad been thought high ; in some parts
of the Union they were thought enormous. But
a little time passed before they complained of the
hardships of their duties; and the law was al-
tered, not so much for the public good as for their
personal convenience. Where two judges were
reouired to hold a court, one was now declared
sufficient. Thus you continued their full salaries,
while you lopped off half their duties. Shortly
after you assigned them, under the pension law,
inconsiderable duties ; and they refused to perform
them. Thus, while they showed themselves ready
to abate of their duties, they adhered to their sala-
ries. Next came the law of last session, which
takes away all their duties. It leaves them sim-
ply a court of appeals. And what have they fot
to do? To try ten suits; for such is the number
now on their docket, as appears from a certificate
just put into my hands; and the average number
on tneir docket amounts to from eight to ten.
Thus, for the trial of the immense number of
eight or ten suits, you have six judges, one with
a salary of four thousand, and five otners with
salaries of three thousand five hundred dollars
each.
I fear, said Mr. M.. that if you take away from
these judg^es that which they ought officially to
do, they will be induced, from the want of employ-
ment, to do that which they ought not to do; they
may do harm. They may be induced, perhaps, to
set about that work gentlemen seem so fond of.
They may, as gentlemen have told us, hold the
Constitution in one hand, and the law in the other,
and say to the departments of Government, so far
shall you ^o and no farther. This independence
of the Judiciary, so much desired, will, I fear sir,
if encouraged or tolerated, soon become something
like supremacy. They will, indeed, form the main
pillar of this goodly fabric ; they will soon be-
come the only remaining pillar, and they will pre-
sently become so strong as to crush and absorb all
the others into their solid mass.
We have been told, that no State in the Union
has presumed to touch the Judiciary establish-
ment, except the State of Maryland. I will not
answer for others ; but with respect to Virginia, I
will answer that she has touched it. Her Consti-
tutional provision for the independence of the
judges is nearly similar to that of the United
States, and yet she has established, modified, and
entirely put down particular departments or her
system.
[Here Mr. M. went into a particularization of
the different changes the Judiciary system of Vir-
ginia had undergone.]
After the particularization, Mr. M. proceeded :
And yet our judges, who are extremely tena-
cious ot their rights, did not complain. Ther
thought, as I think, that they should not be re-
moved from their offices that others might be
placed in them ; and that while they did continue
in office their salaries should be preserved to them.
And I believe the whole of our Constitutional
provision amounts to this ; that, unlike other offi-
cers appointed by the President, they shall not be
removed by him ; that their salaries shall not be
diminished by the Legislature; and that while
the Legislature may continue any particular Judi-
cial establishment under which a judge is ap-
pointed, he shall hold that appointment in defi-
ance or both the other departments of Govern-
ment. A judge may say, I am not to be tuiaed
out of office by the president on the one hand, or
starved by the Legislature on the other. He may
say to the Legislature or the President, and to
both of them combined, you shall not turn me out
of this office as long as it exists, to gratify your
enmity to me, or your favoritism to another per-
son; so long as the interest and convenience of
the people require this institution, they are enti-
tled to my services ; they shall have them, and I
will be paid for them to the utmost fartliing, in
spite of your displeasure or caprice.
Notwithstanding the remarKs of gentlemen, I
am inclined to think these ideas of the extreme
independence of the judges, and the limited pow-
ers of the Legislature, are not very old, but thai
they are of modern origin, and have grown up
since the last session of Congress. For in the
law passed last session, that very law which it is
now proposed to repeal, is to be found a practical
exposition in direct hostility with the principle
now contended for, which does not betray that
sacred regard for the office of a judge, that is. on
this occasion, professed : in that very law will be
found a clause which abolishes two aistrict courts.
The words of the twenty-fourth section say. ex-
pressly, " the district courts of Kentucky and Ten-
nessee shall be and hereby are abolished." Will
gentlemen tell this House how this express provi-
sion came into the act of the last session ; and
will they say, that though they voted for this law,
yet no power exists in the Legislature to abolish
a court? It is true, that it has been said, that
though you put down two district courts, you pro-
moted the officers, by increasing their Varies and
making them judges of the circuit courts ; but the
fact is, you have abolished their offices ; they are
judges no longer of the districts of Kentucky and
Tennessee ; and they are to every purpose, what-
ever may be their name, in reality circuit judges.
Though you have not lessened their salaries, you
have deprived them of their offices. However,
therefore, gentlemen may calculate as to the bene-
fit or injury done these two judges, the principle
is not affected by any result ; their offices are gone.
It is not enough to say, that though you destrored
their offices, you offered them others with higher
salaries. You took away from them, in express
terms, their offices, by abolishing the o&ces. ITon
had stripped them ot their offices, you had robbed
65
HISTORY OF CONGRESS.
66
January, 1803.
Judiciary System.
Senate.
them of their vested right, and then, to make
friends, ofiered them a compensatioD ; but whether
the compensation thus offered for the deprivation
they bad suffered, was really equivalent to their
loss, is a mere matter of calculation, and does not
afiect the Constitutional principle. It is proper,
however, to observe, that they were no parties to
the proposed compromise, and that indeed they
had DO choice left them. They were obliged to
accept of what you offered them, or have nothing.
If they did not a^ree to become judges of the
newly organized circuit courts, they could not re-
main judges of the district courts, for these courts
^Bvere absolutely and completely abolished.
IfVere I, Mr. President, to make a calculation
on the comparative increase of duties and addi-
tional salary, in the case of one of those gentle-
men, (Judge Innes. of Kentucky,) I should have no
hesitation to savj that the bargain which has been
made without bis consent, and without his being
a party to it, is a very bad one for him. Know-
ing, too, his particular situation, I am persuaded
that if the law had left him any election between
his former and new situation, he would have pre-
ferred remaining where he was, and, without a
moment's hesitation, he would have rejected your
proffered promotion, as it is called. This gentle-
man resides within a very few miles of Frankfort,
where, as District Judge of jfentucky, he held
his court. Attached to domestic life, and enjoy-
ing all its felicities^ engaged in, and pleased with,
agricultural pursuits, he was never under the ne-
cessity, even during the sessions of the courts, to
sleep out of his own bed one night, or to be sepa-
rated a single day from his family. He could
every morning give directions for the manage-
ment of his farm, and return early enouirh in the
evening to see whether his orders were executed.
How is he situated under the change which has
been forced upon him '? Instead of attending one
court, almost at his door, your late law obliges him
to attend four ; the nearest, at Bairdstown, fifty or
sixty miles from home. You oblige him to travel
through dreary and inhospitable regions to the
Northwestern Territory, something short of an
hundred miles; and much greater distances to
and through still worse countries, Knozville and
Na»hville, in Tennessee. In going from one to
the other of those last mentioned places, he will
have to pass through the country of the Cherokee
Indians, nearly one hundred miles over the Cum-
berland mountains, where he will be exposed to
every inclemency of the weather, without a shel-
ter to retire to, for there is not a house or a hut in
the whole journey \ a journey in which all trav-
ellers are obliged, at all times, and of unavoidable
necessity^ to sleep one night, at least, and from the
fall of rains, and rise of water-courses, often many
nights, witnout a roof to cover them from the
beating of the storm ; and, moreover, where they
are liable at every step to be robbed by the In-
dians, as I myseli experienced passing through
that wilderness. Can it be supposed, that the five
hundred dollars added to the salary of Judge In-
nes, shouy, W a person situated as he was, be
deemed a sufficient compensation for the addi-
7th Con.— 3
tional duties, the toils, the dangers, and the depri-
vations to which that law subjected him? In
continuing to serve his country, I am sure he must
have been influenced more by a sense of duty than
a regard to private interest, or a belief that the
change was, in any respect, advantageous to him.
By the seventh section of the law of the last
session, which transforms the district into circuit
courts, which melts down the judges and recoins
them, it is enacted, that there shall be a circuit
court, composed of one new circuit judge and two
old district judges, to be called the Sixth Circuit.
Have you not then established a new office by the
destruction of the old one ? Have you not done
more? Have you not violated the Constitution,
by declaring, by law, who shall fill this new office,
though the Constitution declares, article second,
section two, ^ That the President shall nominate,
^ and, by and with the advice and consent of the
' Seh^e, shall appoint all officers which shall be
' established by law."
Where were these guardians of the Constitu-
tion— these vigilant sentinels of our rights and
liberties, when this law passed ? Were they asleep
on their post ? Where was the gentleman from
New York, who has, on this debate, made such a
noble stand in favor of a violated Constitution ?
Where was the Ajax Tdanwn of his party, of, to
use his own more correct expression, the faction
to which be belonged ? Where was the hero with
his seven-fold shield — not of bulPs hide, but of
brass — prepared to prevent or to punish this Tro-
jan rape, which he now sees meditated unon the
Constitution of bis country by a wicked ,/ac/ion ?
Where was Hercules, that he did not crush this
den of robbers that broke into the sanctuary of
the Constitution ? Was he forgetful of his duty ?
Were his nerves unstrung? Or was he the very
leader of the band that broke down these Consti-
tutional ramparts ?
I shall now, sir, trouble .you with a few remarks
on the expediency of repealing this law. It has
been said, that there is nothing peculiarly disgust-
ful in this law; that there has been no public clam-
or excited against it ; that it was enacted with
solemnity, on calm and deliberate reflection ; and
that time has not yet been given to test it by ex-
perience.
As no member, who has taken part in (Rebate,
was a member of this body when the law passed,
I will say something of its history. I am not dis-
posed to excite the sensibility of gentlemen, by
any remarks which I shall make, or to call up un-
pleasant recollections of past scenes. But when
I hear it said that this law was passed with calm-
ness, after mature reflection, and that we are now,
in a fit of passion, going to undo what was thus
wisely done, I think it necessary that the public
should have a correct statement.
It is true, that under the last Administration
when there existed (what I trust will never, in an
equal degree, exist again,) an immoderate thirst
for Executive patronage^ a proposition was made
to establish a new judiciary system ; a system
worse than the present ; as it proposed, according
to my recollection, thirty-eight judges instead of
67
HISTORY OF CONGRESS.
68
Senate.
Judiciary System.
January, 1802.
sixteen. This law was very near passing. It was,
however, rejected in the House of Representatives
by a very small majority. But it was circulated
as a project of a law amona: the people. It was
illy received. It was thought too rank a thing,
and met with general disapprobation throughout
the United States, so far as I have been able to
learn. After this reception, it was softened down
to the plan introduced at the last session. What
temper accompanied the progress of the bill in
the other Hoase I know not, or, if I did know,
would it be proper for me here to say ? But with
respect to the acts of this body, I am not of opin-
ion they added any diginity to our common course
of procedure. The bill was referred to a com-
mittee, who, though it was very long, reported
it without any amendment. Various amend-
ments were offered, some of which were admit-
ted to be proper. But they were not received.
One, indeed, proposed by a member froof Con-
necticut, who was chairman of the committee, and
was then hostile to the plan, did pass, in the early
stages of the bill, but on the third reading it was
expunged. All amendments proposed by the mi-
nority were uniformly rejected, by a steady, in-
flexible, and undeviating majority. I confess that
I saw no passion, but I certainly did see great per-
tinacity ; something like what the gentleman from
Connecticut had termed a holding fasL No
amendments were admitted; when offered, we
were told, no ; you may get them introduced by
a rider or supplementarv bill, or in any way you
please; but down this oill must go; it must be
crammed down your throats. This was not the
precise phrase, but such was the amount of what
was said.
I will say that not an argument was urged in
favor of the bill, not a word to show the necessity
or propriety of the change. Yet we are told that
there was great dignity, great solemnity in its
progress and passage !
But there is something undignified in thus has-
tily repealing this law ! in thus yielding ourselves
to the fluctuations of public opinion ! So we are
told ! — But if there be blame, on whom does it
fall ? Not on us, who respected the public opin-
ion when this law was passed, and who still re-
spect it ; but on those who, in defiance of public
opinion, passed this law, after that public opinion
had been decisively expressed. The revolution
in public opinion had taken place before the intro-
duction of this project ; the people of the United
States had determined to commit their affairs to
new agents ; already had the confidence of the
people been transferred from their then rulers into
other hands. After this exposition of the national
will, and this new deposit of the national confi-
denj;e, the geptlemen should have left untouched
thisT important and delicate subject — a subject on
which the people could not be reconciled to their
views, even in the flood-tide of their power and
influence ; they should have forborne, till agents,
better acquainted with the national will, because
more recently constituted its organs, had come into
the Qovemment. This would have been more
dignified than to seize the critical moment when
power was passing from them, to pass such a law
as this. If there is error, it is our duty to correct
it; and the truth was, no law was ever more exe-
crated by the public.
Let it not be said, postpone the repeal till the
next session. No — ^let us restore those gentlemen
to private life, who have accepted appointments
under this law. This will be doing them greater
justice^ than by keeping them in oflice another
year, till the professional business, which once at-
tached to them, is gone into other channels.
[Mr. Mason went into an examination of the
number of suits depending at the time the law
was passed, and particularly the number brought
within the twelve months preceding its passa^ ;
from the fewness of which, and their being in a
state of diminutioii rather than increase, ne in-
ferred the inutility of the additional judges.]
He continued : If, on this review, we find the
number of suits decreasing instead of increasing ;
if the courts then established were found compe-
tent to the prompt and faithful discharge of all
the duties devolved upon them, the law was un-
necessary ; and, if unnecessary, the additional ex-
pense incurred by it was unnecessary; and all
unnecessary expense should be saved. It is true
that fiftv thousand dollars divided among the
people ot the United States amounted to but one
cent a man ; but the principle was still the same.
It has been very fashionable of late to justify every
unnecessary expense by stating each item by itself
and dividing it among the whole peopU. In this
way every expense is held forth as of little con-
sequence 1 Gentlemen say, in this case, it is only
one cent a man ! In the case of the Mausoleum,
two hundred thousand dollars came to only four
cents a man ! In the direct tax, it is only forty
cents ! They talk of our army, it only comes to
a few cents for each person, who may sell as many
cabbages to the soldiers themselves as to pay it !
So in a navy. In this way are the most extra va-
grant expenses whittled down to a mere fraction.
But this kind of Federal arithmetic I can never
accede to. It may suit an expensive Qovemment ;
but it is an imposition upon the people.
It has been urged with some Jiorce, by the gen-
tlemen from New York and Connecticut, that the
small number of suits is an evidence of the effi-
cacy and ability of our courts of justice. I am
willing to admit the force of this remark ; but I
must apply it very differently from those gentle-
men. I must apply it to the state of the dockets
when this law passed ; and from there being very
few at the time, I must infer that the system ex-
isting then was an excellent one, as it wielded the
power of the laws so effectually, that there was
but little necessity for enforcing the law against
delinquents.
From the remarks made by the gentleman from
Connecticut, it might be inferred that we were
about to destroy all our courts, and that we were
in future to have no courts. Is this the case ? Are
we con tending for breaking down the whole judici-
ary establishment ? On the contrary, we barely
say, the courts you had before the passage of this
law were sufficient; return, therefore to them.
69
HISTORY OF CONGRESS.
70
January. 1802.
Judiciary System.
Senate,
This law, which we wish repealed, imparts no
Dew authorities to your judges; it cloches them
with no additional terrors; it adds not to their
axes, nor increases the number of their rods. It
only enlarges their number, which was before
large enough.
The gentleman from New York has amused
himself with a great deal of handsome rhetoric ;
but I apprehend without bearing much upon the
question. There is one idea, however, which he
has seized with eztacy, the idea of a great State
kneeling at the altar of Federal power ; and he
deplores that this spectacle, the most sublime that
his imagination can conceive, is vanished forever.
But if he will consult those stores of history with
w^hich he so often amuses and instructs his audi-
ence, he will find still more splendid humiliations.
He will find the proud monarcbs of the East, sur-
rounded with all the decorations of royalty, drag-
ged at the chariot wheel of the conqueror. In
more modern times he will behold a Kin^ of Eng-
land and of France, one holding the stirrup and
the other the bridle, while the t^ope mounted his
horse. If not contented with the contemplation
of these illustrious degradations, he may resort to
Sacred Writ, to which he so often appeals ; and in
the very Book of Judges, he will behold a famous
King of Jerusalem, surrounded by three score and
ten dependent Kings, picking up the crumbs from
under his table, and, what made the humiliation
more charming, all these Kings had their thumbs
and great toes cut off.
But if the gentleman from New York wishes to
be gratified- with a more modern idea of sovereign
degradation, I would refer him to the memorable
threat of an individual, a servant of the people»to
humble a whole State, a great State too, in dust
and ashes. A State upon her knees before six
venerable judges, decorated in party-colored robes,
as ours formerly were, or arrayed in more solemn
black, such as they have lately assumed, hoping,
though a State, that it might have some chance
for justice, exnibits a spectacle of humble and
degraded sovereignty far short of the dreadful de-
nunciation to which i allude ! If the gentleman
feels, as I know many do, rapture at the idea of a
State being humiliated and tumbled into the dust,
I envy him not his feelinffs. At such a thought I
acknowledge I feel humbled. If the degradation
were confined to kingsand tyrants, to usurpers who
had destroyed the liberties of nations, I should not
feel much commiseration; but when applied to
governments instituted by the people for the pro-
tection of their liberties, and administered only to
promote their happiness, I feel indignant at the
idea of degraded sovereignty. I should feel the
same interest for any State, large or small, whether
it were the little State of Delaware herself, or the
still more insignificant Republic of St. Marino.
Mr. Stone, of North Carolina. — The import-
ance of the present question might, I presume,
justify any member in delivering his sentiments
without apology. But from the able manner in
which the subject has already been discussed, I
should have been induced to adhere to my usual
course since I have been a member of this body,
and, leaving its elucidation to others of greater ex-
perience and more talents, have been contented
with a silent vote. As, however, the State whose
servant I am, and whose faithful servant I wish at
all times to be found, has instructed her members
on this subject, I will endeavor, in the plain way
of which alone I am capable, to assign the rea-
sons for my vote. And, in doing this, I rather wish
than hope that I may state anything worthy the
consideration of this enlightened assembly.
The argument upon this question has naturally
divided into two parts, the one of expediency —
the other of constitutionality. If the repeal of this
law shall be deemed expedient, the Senate will
doubtless consider it their duty to repeal it if no
£)onstitutional objection opposes it ; but if it shall
be deemed unconstitutional to repeal it, then no
considerations of expediency can stand in the way
of that solemn instrument we are all sworn to
support.
Before entering into an examination of the ex-
pediency of the repeal, it may be proper to re-
mark, that gentlemen who have spoken against
the repeal, whose talents and eloquence I hig^hly
admire, have not correctly stated the question.
The true question is, not whether we shall de-
prive the peo{>le of the United States of all their
courts of justice, but whether we shall restore to
them their former courts. Shall we, or shall we
not, continue an experiment made, or attempted
to be made, I will not say improperly, because my
respect for this body and for my country, forbid
the imputation ; but I will say that the length of
time we remained without this system, and the
repeated ineffectual attempts made to establish it,
presents strong reasons tor inferring that there
are not those great apparent reasons m favor of it
that have been stated. A system somewhat sim-
ilar to the present had been rejected by the Legis-
lature because they preferred the former system.
Another evidence to the same purport is, that du*
ring the last session, when the subject was again
revived, and the present plan adopted, an amend-
ment was offered, to amend by extending and en-
larging the former establishment.
[Here Mr. S. read the amendment proposed,
which augmented the number of judges of the Su-
preme Court, and assigned their circuits.^
This amendment was rejected, and from the
vote entered on the Journal of that day. it appears
that the difference of votes against the amend-
ment was formed of those gentlemen who were
nominated to appointments made vacant by the
promotions under the new law. I do not state this
circumstance as an evidence that these gentlemen
were influenced by improper motives; but to
show that the manner in which the new system
was formed was not calculated to establish, m the
public mind, a decided preference of it over the
old system. Having made these remarks on the
great deliberation said to have been manifested in
the adoption of this plan, I hope I may be permitted
to express my perfect coincidence with the gentle-
man from Connecticut, that courts are necessary
for the admmistration of justice, and that, without
them, our laws would be a dead letter.
t
71
HISTORY OF CONGRESS.
72
Senate.
Judiciary System.
January, 1802.
But it appears tome essential to the dueadmin-
istratioa of justice, that those who preside in our
courts should be well acquainted with the laws
which are to guide their decisions. And, I ap-
prehend, that no way is so much calculated to im-
part this knowledge, as a practical acquaintance
with them, by attending courts in the several
States, and hearing p^entlemen who are particu-
larly acquainted with them, explain and discuss
them. It is,i therefore, absolutely necessary, in my
mind, that the judges of the Supreme Court,
whose power controls all the other tribunals, and
on whose decisions rest the property, the reputa-
tion, the liberty, and the lives of our citizens,
should, by riding the circuit, render themselves
practically acquainted with their duties. It is
weH known, that the knowledge of the laws of
a State is not to be suddenly acquired, and it is
reasonable to conclude, that that knowledge is
most correctly possessed by men whose whole
lives have been devoted to the acquisition. It is
also perfectly well known, that the knowledge of
the modes and principles of practice in the differ-
ent States, or of any State, is most effectually to
be acquired in courts, where gentlemen of skill
and experience apply those principles to use upon
existing points.
This defect, then, of the present plan, is, in my
opinion, so radical, that, of itself, it would decide,
with me, the question of expediency.
With regard to the expense of this new system,
I will say, that it weighs as much as it is worth.
The single consideration of an expenditure of thir-
ty thousand dollars may not be deemed of much
importance, when weigned with the benefits de-
rived from an administration of justice over this
extensive country. If this great object can be
better effected with the additional expense, then
it is proper to consider whether the amelioration
is worth^the price ; but, if it is not better effected,
it surely cannot be the wish of any gentleman to
incur a useless expense. If, when this law passed,
the business, to the transaction of which the old
courts were fully competent, was lessening, then
surely there was no occasion for additional tribu-
nals.
The more important consideration involves the
Constitutional question : Cair we, according to
that sacred instrument, repeal this law, and de-
stroy the offices created by it ? If we cannot, I
hope the Senate will reject the proposition on
your table. But if we can, as on examination
I think we may, I trust the resolution will be
adopted.
The gentleman from Kentucky, who introduced
this subject, has so fully and forcibly stated that
part of the argument which establishes that the
office of judge, being declared by the Constitution
to be during good behaviour, must evidently ap-
ply to existing officer, not to contest the power of
the Legislature in doing away offices, that I shall
not touch it.
I have taken a view of the Constitution, which,
though new in this argument, appears to me to
be correct and conclusive. The Iburth section of
the second article of that Constitution declares.
' that '^ the President, the Vice President, and all
^ civil officers of the United States, shall be re-
' moved from office on impeachment for, and con-
^ viction of, treason, bribery, or other high crimes
^ and misdemeanors."
This section being added to the article establish-
ing the Executive power, evidently operates as a
restraint or curb to that power, tojprevent the Pre-
sident, Vice President or any officer in the ap-
S ointment of the Presiaent, from remaining in of-
ce, when, in the opinion of the Legislature, the
public good requires them to be displaced. The
practical construction put upon this article, in con-
nexion with other parts of the Constitution, is,
that all officers in the appointment of the Presi>
dent may be removed at nis will ; but that those
officers, together with himself and Vice President,
shall be removed upon impeachment and convig-
tion, by the Legislature. No part of the Constitu-
tion expressly gives the power of removal to the
President; but a construction has been adopted
and practised upon from necessity, giving him
that power in all cases in which he is not expressly
restrained from the exercise of it. The judges
afford an instance in which he is expressly re-
strained from removal ; it being declared, by the
first section of the third article of the Constitution,
that the judges both of the supreme and inferior
courts shall hold their offices duriag good beha-
viour. They doubtless shall, (as against the Pre-
sident's power to retain them in office,) in com-
mon with other offices of his appointment, be re-
moved from office by impeachment and conviction ;
but it does not follow that they might not be re-
moved by other means. They shall hold their offices
during good behaviour, and they shall be removed
from office upon impeachment and conviction of
treason, bribery, and other high crimes and mis-
demeanors. If the words, impeachment of high
crimes and misdemeanors, be understood accord-
ing to any construction of them hitherto received
and established, it will be found, that although a
judge, guilty of high crimes and misdemeanors, is
always guilty of misbehaviour in office, yet that
of the various species of misbehaviour in office,
which may render it exceedingly improper that a
judge should continue in office, many of ihem are
neither treason, nor bribery, nor can they be pro-
perly dignified by the appellation of hign crimes
and misdemeanors ; and for the impeachment of
which no precedent can be found ; nor would the
words of the Constitution justify such impeach-
ment.
To what source, then, shall we resort for a
knowledge of what constitutes this thing, caUed
niisbehaviour in office ? The Constitution, surely,
did not intend that a circumstance so important
as the tenure by which the judges hold their offi-
ces, should be incapable of being ascertained.
Their misbehaviour certainly is not an impeach-
able offence; still it is the ground upon which the
judges are to be removed from office. The pro-
cess of impeachment, therefore, cannot be the only
one by which the judges may be removed from
office, under, and according to the Constitution.
I take it, therefore, to be a thing undeniable, that
73
HISTORY OF CONGRESS.
74
January, 1802.
Judiciary System.
Senate .
there resides somewhere in the GoverQment a
power to declare what shall amoant to misbeha-
viour in office, by the judges, and to rempve them
from office for the same, without impeachment.
The Constitution does not prohibit their removal
by the Legislature, who have the power to make
all laws necessary and proper for carrying into
execution the powers' vested by the Constitution
in the Grovernment of the United States But,
says the gentleman fron^ New York, the judges
are officers instituted by the Constitution, to save
the people from their greatest enemies, themselves ;
and therefore, they should be entirely independent
of, and beyond the control of the Legislature. If
such was the design of the wise men who framed
and adopted the Constitution, can it be presumed
they would have provided so ineffectual a barrier
as these judges can readily be sihown to be? It
is allowed, on all hands, the Legislature may mo-
dify the courts : theyr mav add judges, they may
fix the times at which tne courts shall sit, dec.
Suppose the Legislature to have interests distinct
from the people, and the judges to stand in the
way of executing any favorite measure — Can any-
thing be more easy than for the Legislature to de-
clare that the courts, instead of being held semi-
annually, or oftener, shall be held only once in
six, eight, ten, or twenty years'? Or, in order to
free themselves from the opposition of the present
Supreme Court, to declare, that court shall here-
after be held by thirteen judges. An understand-
ing between the President and the Senate would
make it practicable to fill the new offices with
men of different views and opinions from those
now in office. And what, in either case, would
become of this boasted protection of the people
against themselves ? I cannot conceive the Con-
stitutioD intended so feeble a barrier ; a barrier so
easily evaded.
What danger is there to the people from the
Legislature which the courts can control ? The
means of oppression nearest at hand to the L^isla-
ture, and which afford the strongest temptation to
their use, are^ the raising extravagant and unneces-
sary sums or money, and the imbodying large and
useless armies. Can the courts oppose enectual
checks to these powers 1 I presume not. The
Constitution permits their exercise to any extent
within the discretiop of the Legislature.
The objects' of courts of law, as I understand
them, are, to settle questions of right between suit*
ors ; to enforce obedience to the laws, and to pro-
tect the citizens against the oppressive use of power
in the Executive offices. Not to protect them
against the Legislature, for that I think I have
shown to be impossible, with the powers which
the Legislature may safely use and exercise ; and
because the people have retained, in their own
hands, the power of controlling and directing the
Legislature, by their immediate and mediate elec-
tions of President. Senate, and House of Repre-
sentatives.
It is not alone the sixteen rank and file, which
the gentleman from New York has so ludicrously
depicted, that I apprehend immediate danger from. |
hat it is the principle %hich converts the office or 1
judge into an hospital of incurables, and declares,
that an expiring faction, after having lost the pub-
lic confidence, may add to those sixteen, until they
become sixteen hundred or sixteen thousand ; and
that the restored good sense of the Legislature, the
whole Government and Constitution, retains no
means of casting them off, but by destroying itself,
and resorting to revolutionary principles. The
Legislature may repeal unnecessary taxes, may
disband useless and expensive armies, may declare
they will no longer be bound by the stipulations
of an oppressive treaty ; and if war should follow,
the Constitution is still safe. But if the construc-
tion which gentlemen contend for, be correct, a
band of drones, to any amount in number, under
the denomination of judges, may prey upon the sub-
stance of the people, and the Government retains
not the power to remove them but by destroying
the Constitution itself.
I beseech this enlightened a.ssembly to pause
before they adopt a construction capaole ot pro-
ducing so great a mischief, and so meffectuai to
the ends proposed.
The question is not now, as it would seem from
the arguments of gentlemen, they understood it
to be, whether we shall abolish offices without
compensating the officers for the sacrifices they
may have made. If a proposal to compensate
them shall be brought forward, the Legislature
will surely do what honor smd justice shall re-
quire.
If I possessed equal powers of speech with the
gentleman from Connecticut, I might be tempted
to make as impressive an address to the feelings of
the Senate. Sure I am I feel as deep an interest
in, and solicitude for, the Constitution as that gen-
tleman. I view it, with hinh as the bond ofour
Union, and the foundation of our safety. But it
must oe supported on reasonable and practical
grounds. My understanding is incapable of see-
ing how the absurdities and evils of the construc-
tion contended for can be avoided. I hope, there-
fore, that the power of the Legislature to put
down as well as to build up courts of justice, as
the public good may require, will be established.
Not having accustomed myself to deliver my
sentiments in this or the other branch of the Legis-
lature, I may not have comprised them in so short
a compass, nor in such orderly shape, as would be
proper in submitting them to this enlightened as-
sembly. If, however, I have succeeded in stating
intelligibly the grounds of my conviction, I am
satisfi^. If my remarks have contributed to elu-
cidate the subject to others, I shall rejoice ; but if,
failing in this, they also are mixed with error, I
trust gentlemen will set them right.
Thcbsday, January 14.
The Senate took into consideration the resolu-
tion of the House of Representatives of the 21st
of December last, authorizing the Secretary of
State to furnish the members of both Houses with
a copy of the laws of the sixth Congress, and
concurred therein.
A message from the House of Representatives
75
Senate.
HISTORY OF CONGRESS.
Judiciary System.
7S
January. 1802
informed the Senate that the House agree to some
and disagree to other amendments of the Senate,
to the bill concerning the library for the use of
both Houses of Congress. They have passed a
bill authorizing the discharge of John Hobby from
his confinement; in which they desire the con-
currence of the Senate.
The bill last mentioned was read, and ordered
to the second reading.
JUDICIARY SYSTEM.
The Senate re&umed the consideration of the
motion made on the 6th instant, that the act of
Congress passed on the 13th day of February,
1801, entitled " An act to provide for the more
convenient organization of the courts of the Uni-
ted Stales," ought to be repealed.
Mr. Olcott, of New Hampshire, said this sub-
ject was of the most important kind, and though
many able arguments had been already offered, he
could not pass it over with a silent vote. '
It has been suggested that the act now proposed
to be repealed, came in on the influx of passion,
and that the influx of reason should sweep it
away. He did not know that this was the case.
Some gentlemen contend that it was adopted with
great deliberation.
He thought the reasons for a repeal of this law
insufficient. It is ^not said, that if the Constitu-
tion vests a right to office in the judges, that we
can affect them. He thought the Constitution
did vest the right, and he held it to be sacred.
The provisions of the Constitution appeared to
him so plain, that they scarcely admitted of illus-
tration. He who undertakes to explain the text,
must find more explicit terms than those contained
in it. He could not find any.
After dwelling upon the different provisions of
the Constitution, Mr. O. went upon the question
of expediency, at some length, and concluded that
a repeal was as inexpedient as unconstitutional.
Mr. Cocke, of Tennessee, followed Mr. Olcott.
He said he was sorry gentlemen attempted to
make quack doctors of them, by saying we may
five a wound but cannot heal it. He wished the
•enate to inquire whether the law now proposed
to be repealed was Constitutional or not. If it
was not, we should act like honest men, acknowl-
edge that we have violated the Constitution, and
restore it to its purity by repealing the law. Let
us recur to the journals of 1799, and see what
was the understanding of these champions of our
liberties, and whether they have not since changed.
The journals would prove that the judges were
to mix with the Legislature, were to be locked up
in a closet, and to declare who was to be our Ex-
ecutive Magistrate.
[Mr. Cocke here went into an examination of
the arguments on the Constitutional point.]
We have been told that the nation is to look up
to these immaculate judges to protect their liber-
ties; to protect the people against themselves.
This was novel, and what result did it lead to ?
He shuddered to think of it. Were there none of
these judges ready to plunge their swords in the
American heart ? He did not think it proper to
be alarmed by the terrors held out. He wished
to know no man ; to take things as they are. But
if gentleman will attack, they must expect a reply-
Mr. Cocke then dilated upon the several points
of the discussion, and concluded with the expres-
sion of the hope that the Legislature would repeal
the law. and that they would not give way to the
ideas of gentlemen, that the Government was
made for a chosen few, for the judges, to whom
we are to look up for «very thing.
Mr. MoBRis.— Mr. President, I had fostered
the hope that some gentleman, who thinks with
me, would have taken upon himself the task of re-
plying to the observations made yesterday and this
morning, in favor of the motion on your table. —
But since no gentleman has gohe so fully into the
subject as it seems to require, I am compelled to-
request your attention.
We were told yesterday, by the honorable mem-
ber from Virginia, that our objections were calcu-
lated for the bystanders, and made with a view
to prod uce effect upon the people at large. I know
not for whom this charge is intended. I certainly
recollect no such observations. As I was perso-
nally charged with making a play upon words, it
may have been intended for me. But surely, sir,
it will be recollected that I declined that paltry
game^ and declared that I considered the verbal
criticism which had been relied on, as irrelevant.
If I can recollect what I said, from recollecting
well what I thought, and meant to say, sure I am
that I uttered nothing in the style of an appeal to-
the people, I hope no member of this House has
so poor a sense of its dignity as to make such an
appeal. As to myself, it is now near thirty years
snce I was called into public office; during that
period I have frequently been the servant of the
people, always their friend ; but at no one moment
of my life their flatterer, and God forbid that I
ever should be. When tne honorable gentleman
considers the course we have taken, he must
see that the observation he has fbus pointed, can
light on no object. I trust that it aid not flow
from the consciousness of his own intentions. He,
I hope, had no view of this sort. If he had. he
was much, very much mistaken. Had he lopked
round upon those who honor us with their attend-
ance he would have seen that the splendid flashes
of his wit excited no approbatory smile. • The
countenances of those by whom we were surround-
ed, presented a different spectacle. They were im-
pressed with the dignity of this House; they per-
ceived in it the dignity of the American people,
and felt, with high and manly sentiment, their own
participation.
We have been told, sir, by the honorable gen-
tleman from Virginia, that there is no independ-
ent part of this Government. That in popular
Governments the force of every department, as
well as the Government itself, must depend upon
Dopular opinion. And the honorable member from
North Carolinia has informed us that there is no
check for the overbearing powers of the Legisla-
ture but public opinion; and he has been pleased
to notice a sentiment I had uttered — a sentiment
which not only fell from my lips, but which flow-
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HISTORY OF CONGRESS.
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ed from my heart. It has, however, been misun-
derstood and misapplied. After reminding the
House of the dangers to which popular govern-
ments are exposed, from the influence of design-
ing demagogues upon popular passion, I took the
liberty to say, that we, we the Senate of the Uni-
ted States, are assembled here to save the people
from their most dangerous enemy, to save them
from themselves; to guard them against the bane-
ful effects of their own precipitation, their passion,
their misguided zeal. ' Tis tor these purposes that
all our Constitutional checks are devised. If this
be not the language of the Constitution, the Con-
stitution is ail nonsense. For why are the Sena-
tors chosen by communities, and the Representa-
tives directly by the people? Why are the one
chosen for a lonser term than the other? Why
give one branch of the Legislature a ne^iive
upon the acts of the other ? Why give the Presi-
dent a right to arrest the proceed mgs of both, til!
two-thirds of each should concur ? Why all these
multiplied precautions, unless to check and con-
trol that impetuous spirit, that headlong torrent
of opinion, which has swept away every popular
Government that ever existed?
With the most respectful attention, I heard the
declaration of the gentleman from Virginia, of his
own sentiment. '^ Whatever." said he, '^ may be
my opinion of the Constitution, I hold myself
bound to respect it." He disdained,' sir, to profess
an attachment he did not feel, and I accept his
candor as a pledge for the performance of his
duty: But he will admit this necessary inference
from that frank confession, that although he will
struggle (against his inclination) to support the
Constitution, even to the last moment ; yet, when
in spite of all his efforts it shall fall, he will rejoice
in its destruction. Far different are my feelings. It
is possible that we are both prejudiced, and that,
in taking the ground on which we respectively
stand, our judgments are influenced by the senti-
ments which slow in our hearts. I. sir, wish to
support this Constitution, because I love it; and
I love it, because I consider it as the bond of our
union; because in my soul I believe that on it de-
pends our harmony and our peace; that without
it we should soon be plunged in all the horrors of
civil war; that this country would be deluged
with the blood of its inhabitants, and a brother's
hand raised against the bosom of a brother.
After these preliminary remarks, I hope I shall
be indulged while I consider the subject in refer-
ence to the two points which have been taken, the
expediena/ and the constitiUionality of the repeal.
lif considering the expediency^ I hope I shall be
pardoned for asking your attention to some parts
of the Constitution, which have not yet been dwelt
upon, and which tend to elucidate this part of our
inquiry. I agree fully with the gentleman, that
every section, every sentence, and every word of
the Constitution, ought to be deliberately weigh-
ed and examined ; nay, I am content to go along
with him, and give its due value and importance
to every stop and comma. In the beginning we
find a declaration of the motives which induced
the American people to bind themselves by this
compact. And in the fore-ground of that decla-
ration, we find these objects specified, '^to form a
more perfect union, to establisn justice, and to in-
sure domestic tranquillity." But how are these
objects effected ? The people intended to establish
justice. What provision have they made to fulfil
that intention? After pointing out the courts
which should be established, the second section of
the third article informs us:
" The judicial power shall extend to all cases in law
and equity, arising under this Constitution, the laws
of the United States, and treaties made, or which shall
be made, under their authority ; to all cases affecting
Ambassadors, other public Ministem and Consuls; to
all cases of admiralty and maritime jurisdiction ; to con-
troversies to which the United States shall be a party ;
to controversies between two or more States ; between
a State and citizens of another State; between citizens
of different States; between citizens of the same State
claiming lands under grants of different States ; and
between a State, or the citizens thereof, and foreign
States, citizens, or subjects.
"In all cases affecting Ambassadors, other public
Ministers and Consuls, and those in which a State
shall be a party, the Supreme Court shall have origi-
nal jurisdiction. In all the other cases before mention^
ed, the Supreme Court shall have appeUate jurisdic-
tion, both as to law and fact, with such exceptions
and under such regulations as the Congress shall make."
Thus then we find that the judicial power shall
extend to a great variety of cases, but that the Su-
preme Court shall have only appellate jurisdiction
m all admiralty and maritime causes, in all con-
troversies between the United States and private
citizens, between citizens of different States, be-
tween citizens of the same State claiming lands
under different States, and between a citizen of
the United States and foreign States, citizens^ or
subjects. The honorable gentleman from Ken-
tucky, who made the motion on your table, has
told us that the Constitution, in its judiciary pro-
visions, contemplated only those cases which could
not be tried in the State courts. But he will, I
hope, pardon me when I contend that the Consti-
tution did not merely contemplate, but did, by ex-
press words, reserve to the national tribunals a
right to decide, and did secure to the citizens of
America a right to demand their decision, in many
cases evidently cognizable in the State courts.
And what are these cases? They are those in re-
spect to which it is by the Constitution presumed
tnat the State courts would not always make a
cool and calm investigation, a fair and just deci-
sion. To form, therelore, a more perfect union,
and to insure domestic tranquillity, the Constitu-
tion has said there shall be courts of the Union to
try causes, by the wrongful decision of which the
Union might be endangered or domestic tranquil-
lity be disturbed. And what courts? Look again
at the cases designated. The Stipreme Court has
no original jurisdiction. The Constitution has
said that the judicial powers shall be vested in the
supreme and inferior courts. It has declared that
the judicial power so vested shall extend to the
cases mentioned, and that the Supreme Court shall
not have original jurisdiction in those cases. Ev-
idently, therefore, it has declared that they shall
79
HISTORY OF CONGRESS.
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(in the first instance) be tried by inferior courts,
with appeal to the Supreme Court. This, there-
fore, amounts to a declaration, that the inferior
courts shall exist. Since^ without them, the citi-
zen is deprived of those rights for which he stipu-
lated, or rather those rights verbally granted would
be actually withheld; and that great security of
our Union, that necessary guard of our tranquil-
lity, be completely paralyzed, if not destroyed. In
declaring then that these tribunals shall exist, it
equally declares that the Congress shall ordain
and establish them. I say .they shall ; this is the
evident intention, if not the express words, of the
Constitution. The Convention in framing, the
AmeriQan people in adopting, that compact, did
not. could not presume, that the Congress would
omit to do what they were thus bound to do. They
could not presume, that the Legislature would
hesitate one moment, in establishing the organs
necessary to carry into effect those wholesome,
those important provisions.
The honorable member from Virginia has given
us a history of the judicial systeai, and in the
course of it has told us, that the judges of the Su-
preme Court knew, when they accepted their offi-
ces, the duties they had to perform, and the sala-
ries they were to receive. He thence infers, that
if again called on to do the same duties, they have
no right to complain. Agreed: But that is not
the question between us. Admitting that they
have made a hard bargain, and that we may hold
them to a strict performance, is it wise to exact
their compliance to the injury of our constituents?
We are urged to go back to the old system; but
let us first examine the effects of that system. The
judges of the Supreme Court rode the circuits,
and two of them, with the assistance of a district
judge, held circuit courts and tried causes. As a
Supreme Court they have in most cases only ap-
pellate jurisdiction. In the first instance, there-
fore, they tried a cause, sitting as an inferior court,
and then on appeal tried it over again, as a Su-
preme Court. Thus then the appeal was from the
sentence of the judges to the judges themselves.
But say, that to avoid this impropriety, you will
incapacitate the two judges who sat on tne circuit
from sitting in the Supreme Court to review their
own decrees. Strike them off; and suppose either
the same or a contrary decision to have been made
on another circuit, by two of their brethren, in a
similar case : For the same reason you strike them
off. and then you have no court left. Is this wise ?
Is It safe ? You place yourselves in the situation
where your citizens must be deprived of the advan-
tage given to them of a court of appeals, or elae run
the greatest risk that the decision of the first court
will carry with it that of the other.
The same honorable member has given us a
history of the law passed the last session^ which
he wishes now to repeal. That history is accu-
rate, at least in one important part of it. I believe
that all amendments were rejected, pertinaciously
rejected ; and I acknowledge that I joined heartily
in that rejection. It was for the clearest reason
on earth. We all perfectly- understood, that to
amend the bill was to destroy it ; that if ever it got
back to the other House, it would perish. Those.
therefore, who approved of the general provisions
of that bill, were determined to adopt it. We
sought the practicable good, and would not, in
pursuit of unattainable periection, sacrifice that
good to the pride of opinion. We took the hilL
therefore, with its imperfections, convinced that
when it was once passed into a law, it mi^ht be
easily amended.
We are now told, that this procedure was ink-
proper; nay. that it was indecent. That public
opinion had declared itself against us. That a
majority (holding different opinions) was already
chosen to the other House ; and that a similar ma-
jority was expected from that in which 'we sit.
Mr. rresident, are we then to understand that oppo-
sition to the majority in the two Houses of Con-
gress is improper, is indecent ? If so. what are we
to think of those gentlemen, who, not only with
proper and decent, but with laudable motives, (for
such is their claim,) so long, so perseveringly. so
pertinaciously opposed that voice of the people.
which had so repeatedly, and for so many years,
declared itself against them, through the organ of
their representatives'? Was this indecent inthem?
If not, how could it be improper for us to seize
the only moment which was left for the then ma-
i'ority to do what they deemed a necessary act?
uei me again refer to those imperious demands of
the Constitution, which called onus to establish
inferior courts. Let me remind gentlemen of their
assertion on this floor, that centuries might elapse
before any judicial system could be established
with general consent. And then let me ask, being
thus impressed with the sense of the duty and the
difficulty of performing that arduous task, was it
not^wise to seize the auspicious moment?
Among the many stigmas affixed to this law.
we have been told that the President, in selecting
men. to fill the offices which it created, made va-
cancies and filled them from the floor of this House;
and that but for the influence of this circumstance,
a majority in favor of it could not have been foundi
Let us examine this suggestion. It is grounded
on a supposition of corrupt influence derived from
a hope, founded on two remote and successive con-
tingencies. First, the vacancy might or might
not exist ; for it depended as well on the accept-
ance of another as on the President's grant: and
secondly, the President might or might not fill it
with a member of this House. Yet on this vague
conjecture, on this unstable ground, it is inferred
that men in high confidence violated their duty.
It is hard to determine the influence of self-interest
on the heart of man. I shall not, therefore, tnake
the attempt. In the present case, it is possible
that the imputation may be just, but I hope not
I believe not. At any rate gentlemen will agree
with me, that the calculation is uncertain, and the
conjecture vague.
But let it now, for argument sake, be admitted,
saving always the reputation of honorable men,
who are not here to defend themselves. Let it, I
say, for argument sake be admitted, that the een-
tleinen alluded to acted under the influence ofim-
proper motives. What then ? Is a law that has
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HISTORY OF CONGRESS.
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received the varied assent required by the Consti-
tution, and is clothed with all the needful formal-
ities, thereby invalidated? Can you impair its
force by impeaching the motives of any member
who voted for if? Does it follow, that a law is
bad because all those who concurred in it cannot
give good reasons for their votes i Is it not before
us? Must we not judge of it by its intrinsic merit?
Is it a fair argument, addressed to our understand-
ing, to say, we must repeal a law. even a good
one, if the enacting of it mfty have been effected
in any degree by improper motives? Or is the
judgment of this House so feeble, that it may not
DC trusted?
Gentlemen tell us, however, that the law is ma-
terially defective, nay, that it is unconstitutional.
What follows? Gentlemen bid us repeal it. But
is this just reasoning ? If the law be only defec-
tive, wny not amend ? And if unconstitutional,
why repeal ? In this case no repeal can be neces-
sary ; the law is in itself void ; it is a mere dead
letter.
To show that it is unconstitutional, a particular
clause is pointed out, and an inference is made, as
in the case of ^oods, where, because there is one
contraband article on board, the whole cargo is
forfeited. Admit for a moment, that the part al-
luded to were unconstitutional, this would in no
wise affect the remainder. That part would be
void, or, if you think proper, you can repeal that
part. *
Let us, however, examine the clause objected to
on the ground of the Constitution. It is said, that
bv this law the district judges in Tennessee and
Kentucky are removed from office by making
them circuit judges. And a^ain, that you have by
law appointed two new offices, those of circuit
judges, and filled them by law, instead of pursuing
the mode of appointment prescribed by the Con-
stitution. To prove all this, the gentleman from
Virginia did us the favor to read those parts of the
law which he condemns, and if I can trust to my
memory, it is clear, from what he read, that the
laws does not remove these district judges, neither
does it appoint them to the office of circuit judges.
It does indeed put down the district courts ; but is
so far from destroying the offices of district judge,
that it declares the persons filling those offices shall
perform the duty of holding the circuit courts.
And so far is it from appointing circuit judges, that
it declares the circuit courts shall be held by the
district judges. But gentlemen contend, that to
discontinue the district courts, was in effect.to re-
move the district judge. This, sir, is so far from
being a just inference from the law, that the direct
contrary follows as a necessary result ; for it is on
the principle that these judges continue in office
after their courts are discontinued, that the new
duty of holding other courts is assigned to them.
But gentlemen say, this doctrine militates with the
principles we contend for. Surely not. It must
be recollected, sir, that we have repeatedly admit-
ted the; right of the Legislature to change, alter,
modify, and amend the judiciary system, so as best
to promote the interests of the people. We only
contend, that you shall not exceed or contravene
the authority by which you act. But, say gen-
tlemen, you forced this new office on the district
judges, and this is in effect a new appointment.
I answer, that the question can only arise on the
refusal of those judges to act. But is it unconsti*
tutional to assign new duties to officers already ex-
isting ? I fear that if this construction be adopted,
our labors will speedily end ; for we shall be so
shackled, that we cannot move. What is the prac-
tice ? Do we not every day call upon particular
officers to perform duties not previouslv assigned
to, or required of them ? And must the kzecutive
in every such case make a new appointment ?
But as a further reason to restore, by repealing*
this law, the old system, an honorable member
from North Carolina has told us, the judges of the
Supreme Court should attend in the States, to ac-
quire a competent knowledge of local institutions,
and for this purpose should continue to ride the
circuits. I believe there is great use in sendinj^
young men to travel; it tends to enlarge their
views, and give them more liberal ideas than they
might otherwise possess. Nay, if they reside loni;
enough in foreicfn countries, thev may become ac-
quainted with the manners of the people, and ac-
quire some knowledge of their civil institutions.
But I am not quite convinced that riding rapidly
from one end of this country to thfe other is the
best way to study law. I am inclined to believe
that knowledge may be more conveniently acquir-
ed in the closet than in the high road* It is more-
over to be presumed, that the First Magistrate
would, in selecting persons to fill these offices, take
the best characters from the different parts of the
country, who already possess the neednil acquire-
ments. But admitting that the President should
not duly exercise, in this respect, his discretionary
powers, and admitting that the ideas of the gen-
tleman are correct, how wretched must be our
condition ! These, our judges, when called on to
exercise their functions, would but begin to learn
their trade, and that too at a period of life when
the intellectual powers with no great facility can
acquire new ideas. We must therefore, have a
double set of judges. One set ot apprentice-judges
to ride circuits and learn ; the other set of master-
judges, to hold courts and decide controversies.
We are told, sir, that the repeal asked for is im-
portantj in that it may establish a precedent, for
that it IS not merely a question on the propriety
of disbanding a corps of sixteen rank and file ; but
that provision may nereafter be made, not for six-
teen, but for sixteen hundred or sixteen thousand
judges, and that it may become necessary to turn
them to the right about. Mr. President. I will not.
I cannot presume, that any such provision will
ever be made, and therefore I cannot conceive any
such necessity ; I will not suppose, for I cannot
suppote, that any party or faction will ever do anv-
thing so wild, so extravagant. But I will ask,
how does this strange supposition consist with the
doctrine of gentlemen, that public opinion is a
sufficient check on the Legislature, and a sufficient
safeguard to the people ? Put the case to its con-
sequences, and what becomes of the check ? Will
gentlemen say it is to be found in the force of this
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wise precedent? Is this to control succeeding
rulers in their wild, their mad career? But how?
Is the creation of judicial officers the only thing
committed to their discretion ? Have they not, ac-
cording to the doctrine contended for. our all at
their disposition, with no other check tnan public
opinion, which, according to the supposition, will
not prevent them from committmg the greatest
follies and absurdities ? Take then all the gentle-
man's ideas, and compare them together, it will
result that here is an inestimable treasure put into
the hands of drunkards, madmen, and fools.
But away with all these derogatory suppositions.
' The Legislature may be trusted. Our Government
is a system of salutary checks : one Legislative
branch is a check on the other. And should the
violence of party spirit bear both of them away,
the President, an officer high in honor, high in the
public confidence, charged with weighty concerns,
responsible to his own reputation, and to the world,
stands ready to arrest their too impetuous course.
This is our system. It makes no mad appeal to
every mob in the country. • It appeals to the so-
ber sense of men selected from their fellow-citizens
for their talents, for their virtue; of men advan-
ced in life, and of matured judgment. It appeals
to their understanding, to their integrity, to their
honor, to their love of fame, to their sense of shame.
If all these checks should prove insufficient, and
alas I such is the condition of human nature, that
I fear they 'will not always be sufficient, the Con-
stitution has given us one more: it has given
us an independent judiciarjr. We have been told,
that the Executive authority carries your laws
into execution. But let us not be the dupes of
sound. The Executive Magistrate commands in-
deed your fleets and armies ; and duties, imposts,
excises, and other taxes are collected, and aU ex-
penditures are made by officers whom he has ap-
g>inted. So far indeed he executes youT laws,
ut these, his acts, apply not often to individual
concerns. In those cases, so important to the peace
and happiness of society, the execution of your
laws is confided to your judges ; and therefore are
they rendered independent. Before then that you
yiolate that independence, pause. There are State
sovereignties, as well as the sovereignty of the
Qeneral Grovernment. There are cases, too many
cases, in which the interest of one is not considered
as the interest of the other. Should these conflict,
if the judiciary be gone, the question is no longer
of law, but of force. This is a state of things
' which no honest and wise man can view with-
out horror.
Suppose, in the omnipotence of your Legislative
authority, you trench upon the rights of your fel-
low citizens, by passing an unconstitutional law.
If the judiciary department preserve its vigor, it
will stop you short. Instead of a resort to arms,
there will be a happier appeal to argument. Sup-
pose a case still more impressive. The President
IS at the head of your armies. Let one of his gen-
erals, flushed with victory, and proud in command,
presume to trample on the rights of your most
insignificant citizen : -indignant of the wrong, he
will demand the protection of your tribunals, and,
safe in the shadow of their wings, will laagh hii^
oppressor to scorn.
Having now, I believe, examined ail the argu-
ments adduced to show the expediency of this
motion, and which, fairly sifted, reduce themselves
at last to these two things: restore the ancient
system, and save the additional expense — before
I close what I have to say on this ground, I hope
I shall be pardoned for saying one or two words
about the expense. I hope, also, that, notwith-
standing the jepilhet^ which may be applied to
my arithmetic, I shall be pardoned for using thai
wnich I learned at school. It may have deceived
me when it taught me that two and two make
four. But though it should now be branded with
opprobrious terms, I must still believe that two
and two do still make four. Grentlemen of newer
theories, and of higher attainments, ivhile they
smile at my inferiority, must bear with noiy infir-
mities, and take me as I am.
In all this great system of saving; in all thii
ostentatious economy, this rage for reform, how
happens it that the eagle eye has not yet been
turned to the Mint? That no one piercings grlance
has been able to behold the expenditures of that
department? I am far from wishing to overturn
it. Though it be not of great necessity, nor even
of substantial importance; though it be but a
splended trapping of your Government ; yet. as it
may, by impressing on your current coin the em-
blems of your sovereignty, have some tendency
to encourage a national spirit, and to foster the
national pride, I am willing to contribute my share
for its support. Yes, sir, I would foster the nation-
al pride. I cannot indeed approve of national
vanity, nor feed it with vile adulation. But I
would gladly cherish the lofty sentiments of na-
tional pride. I would wish my countrymen to feel
like Romans, to be as proud as Englishmen ; and,
going still farther, I would wish them to veil their
pride in the well bred modesty of French polite-
ness. But can this establishment, the mere deco-
ration of your political edifice, can it be compared
with the massy columns on which you rest your
Ceace and safety? Shall the striking of a few
alf-pence be put into a parallel with the distri-
bution of iustice ? I find, sir, from the estimates
on your table, that the salaries of the officers of the
Mint amount to $10,600, and that the expenses are
estimated at 10.900; making $21,500.
I find that the actual expenditures of the last
year, exclusive of salaries, amounted to 925.154 44;
add the salaries, $10,600, and we have a total of
$35,754 44. A sum which exceeds the salaries
of* these sixteen judges.
I find further, that during the last year they
have coined cents and half cents to the amount of
IO2473 dollars and 29 cents. Thus their copper
coinage falls a little short of what it costs us for
their salaries. We have, however, from this es-
tablishment, about a million of cents — one to each
family in America — ^a little emblematical medal,
to be hung over their chimney pieces. And this
is all their compensation for all that expense. Yet
not a word has been said about the Mint; while
the judges, whose services are so much greater,
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HISTORY OF CONGRESS.
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January, 1802.
Judiciary System,
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and of so miicb more importance to the commooi-
ty, are to be struck off at a blow, in order to save
an expense which, compared with the object, is
pitiful. What conclusion then are we to draw
iToax this predilection?
I will not pretend to assien to gentlemen the
motives by wnich they mayl>e influenced ; but if
I should permit myself to make the inquiry^ the
style of many observations, and more especially
the manner, the warmth, the irritability, whicn
have been exhibited on this occasion, would lead
to a solution of the problem. I haa the honor,
sir, when I addressed you the other day to observe,
that I believed the universe could not afford a
spectacle more sublime than the view of a power-
ful State kneeling at the altar of justice and sac-
rificing there her passion and her pride; that I
once fostered the hope of beholding tnat spectacle
of magnanimity in America. And now what a
world of figures has the gentleman from Virginia
formed on his misapprehension of that remark. I
never expressed anything like exultation at the
idea of a State ignominiously dragged in triumph
at the heels of your judges. JBut permit me to say,
the gentleman's exquisite sensibility on that sub-
ject, his alarm and apprehension, all show his
strong attachment to State authority. Far be it
from me. however, to charge the gentleman with
improper motives. I know that his emotions arise
from one of those imperfections in our nature,
which we cannot remedy. They are excited by
causes which have natufallj^ made him hostile to
this Constitution, though his duty compels him
reluctantly to support it. I hope, however, that
those gentlemen who entertain different senti-
ments, and who are less irritable on the score of
State dignity, will think it essential to preserve a
Constitution, without which the independent ex-
istence of the States themselves will be but of
short duration.
This, sir, leads me to the second object I had
proposed. I shall therefore pray your indulgence,
while I consider how far this measure is Consii-
tutiorud, I have not been able to discover the
expediency, but will now. for argument's sake,
admit it; and here, I cannot but express my deep
regret for the situation of an honorable member
from North Carolina. Tied fast, as he is, by his
instructions^ arguments, however forcible, can
never be effectual. I ought, therefore, to wish, for
his sake, that his mind may not be convinced by
anything 1 shall say; for hard indeed would be his
condition, to be bound by the contrarient obliga-
tions of an order and an oath. I cannot, however,
but express my profound respect for the talents of
those who gave nim his instructions, and who, sit-
ting at a distance, without bearing the arguments,
could better understand the subject than their
Senator on this floor, after full discussion.
The honorable member from Virginia has re-
peated the distinction before taken between the
supreme and the inferior tribunals; he has in-
sisted on the distinction between the words shall
and may; has inferred from that distinction, that
the judges of the inferior courts are subjects of
Legislative discretion ; and has contended that the
word may includes all power respecting the sub-
ject to which it is applied, consequently to raise
up and to put down, to create and to destroy. I
must entreat your patience, sir. while I go more
into this subject than I ever supposed would be
necessary. By the article so often quoted, it is
declared, "that the judicial power of the United
' States shaU be vested in one Supreme Court, and
from
your
' in such inferior courts as the Congressman
^ time to time establish." I bcff leave to call ^
attention to what \ have already said of these in-
ferior courts. That the original jurisdiction of
various subjects being given exclusively to them,
it became the bounden duty of Congress to estab-
lish such courts. I will not repeat the argument
already used en that subject. But I will ask those
who urge the distinction between the Supreme
Court and the inferior tribunals, whether a law
was not previously necessary before the Supreme
Court could be organized. They reply, that the
Constitution says, there «Aai/ be a Supreme Court,/
and therefore the Congress are commanded to or-
g^anize it, while the rest is left to their discre-
tion. This, sir, is not the fact. The Constitu-
tion says, the judicial power shall be vested in one
Supreme Court, and in inferior courts. The
Legislature can therefore only organize one Su-
preme Court, but they may establish as many in-
ferior courts as they shall think proper. The de-
signation made of them by the Constitution is, such
inferior courts as the Congress may from lime to
time ordain and establish. But why, say gentle-
men, fix precisely one Supreme Court, and leave
the rest to Legislative discretion? The answer is
simple : It results from the nature of things from
the existent and probable state of our country.
There wM no dimculty in deciding that one and
only one^upreme Court would be proper or ne-
cessary, to wnich should lie appeals from inferior
tribunals. Not so as to these. The United States
were advancing in rapid progression. Their popu-
lation ,of three millions was soon to become five,
then ten, afterwards twenty millions. This was
well known, as far as the future can become an
object of human comprehension. In this increase
of numbers, with a still greater increase of wealth,
with the extension of our commerce and the pro-
gress of the arts, it was evident that although a
great many tribunals would become necessary, it
was impossible to determine either on the precise
number or the most convenient form. The Con-
vention did not pretend to this prescience ; but had
they possessed it, would it have been proper to
have established, then, all the tribunals necessary
for all future times? Would it have been wise to
have planted courts among the Chickasaws, the
Choctaws, the Cherokees, the Tuscaroras, and
Gk>d knows how many more, because at some
future day the regions over which they roam
might be cultivated by polished men? Wash not
proper, wise, and necessary, to leave in the discre-
tion of £^ongress the number and the kind of
courts which they might ^Qd it proper to estab-
lish for the purpose designated by the Constitu-
tion? This simple statement of facts — facts of
public notoriety — is alone a sufficient comment
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HISTORY OF CONGRESS.
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on, and explanation of, the word on which gen-
tlemen have so much relied. The Convention in
framing, the people in adopting, this compact, say
the judicial power shall extend to many cases,
the original cognizance whereof shall he by the
inferior courts; but it is neither necessary, nor
even possible, now to determine their number or
their form; that essential power, therefore, shall
vest in such inferior courts as the Congress may
from time to time, in the progression of time, and
according to the indication of circumstances, es-
tablish ; not provide, or determine, but establish.
Not a mere temporary^ provision, but an establish-
ment. If, after this, it had said in general terms,
that judges should hold their offices during good
behaviour, could a doubt have existed on the in-
terpretation of this act, under all its attending
circumstances, that the judges of the inferior
courts were intended as well as those of the Su-
preme Court? But did the framers of the Consti-
tution stop here? Is there then nothiog more?
Did they risk on these grammatical niceties the
fate of America? Did they rest here the most im-
portant branch of our Government ? Little im-
portant, indeed, as to foreign danger; but infinitely
valuable to our domestic peace, and to personal
protection against the oppression of our rulers.
No ; lest a doubt should be raised, they have care-
fully connected the judges of both courts in the
same sentence ; they have said, " the judges both
of the supreme and inferior courts" thus coupling
them inseparably together. You may cut the
bands, but you can never untie them. With
salutary caution they devised this clause to arrest
the overbearing temper which they knew be-*
longed to Legislative bodies. They do not say
the judees, simply, but the judges of tJK supreme
and in^rior courts shall hold their omtes auring
good behaviour. They say, therefore, to the Le-
gislature, you may judge of the propriety, the
utility, the necessity, of organizing these courts ;
but when established, you have done your duty.
Anticipating the course of passion in future times,
they say to the Legislature, you shall not disgrace
yourselves by exhibiting the indecent spectacle of
judges established by one Legislature removed by
another. We will save you also from yourselves.
We say these judges shall hold their offices ; and
surely,* sir, to pretend that they can hold their
office after the office is destroyed, is contemptible.
The framers of this Constitution had seen much,
read much, and deeply reflected. They knew by
experience the violence of popular bodies, and let
it oe remembered, that since tnat day many of the
States, taught by experience, have found it neces-
sary to change their forms of government to avoid
the effects of that violence. The Convention con-
templated the very act you now attempt. They
knew also the iealousy and the power of the States;
and they established for your and for their protec-
tion this most important department I beg gen-
tlemen to hear and remember what I say : It is
this department alone, and it is the independence
of this department, which can save you from civil
war. Yes, sir, adopt the language of gentlemen,
say with them, by tne act to which you are urged,
" if we cannot remove the judges we can destroj
them." Establish thus the dependence of the ju-
diciary department, who will resort to them for
protection against you ? Who will confide in, who
will be bound by^ their decrees? Are* we then tc
resort to the ultimate reason of Kings ! Are our
arguments to fly from the mouths ofour cannon!
We are told that we may violate our Constitu-
tion, because similar constitutions have been vio-
lated elsewhere. Two States have been cited to
that effect, Maryland and Virginia. The honor-
able gentleman from Virginia tells us that w^hen
this happened in the State he belongs to, no com-
plaint was made by the judges. I will not inquire
into that fact, although I have the protest of the
judges now lying before me; judges eminent for
their talents, renowned for their learning^ respect-
able for their virtue. I will not inquire what
Constitutions have been violated. 1 will not ask
either when or where this dangerous practice be-
gan, or has been followed ; I will admit the fact.
What does it prove ? Does it prove that because
they have violated, we also may violate? Does it
not prove directly the contrary? Is it not the
strongest reason on earth for preserving the inde-
pendence ofour tribunals? If it be true that they
have, with strong hand, seized their courts, and
bent them to their will, oug[ht we not to give
suitors a fair chance for justice in our courts, or
must the suffering citizen be deprived of all pro-
tection ?
The gentleman from Virginia has called onr at-
tention to certain cases whicn he considers as form-
ing necessary except ions to the principles for which
we contend. Permit me to say, that necessity is a
hard law, and frequently proves too much ; and
let the gentleman recollect, that arguments which
prove too much, prove nothing.
He has instanced a case where it may be proper
to appoint commissioners for a limited time tt> set-
tle some particular description of controversies.
Undoubtedly it is always in the power of Congress
to form a board of commissioners for particular
purposes. He asks, are these inferior courts, and
must they also exist forever? I answer, that the
nature or their offices must depend on the law by
which they are created ; if called to exercise the
judicial functions designated by the Constitution,
they must have an existence conformable to its
injunctions.
Again, he has instanced the Mississippi Terri-
tory claimed by, and which may be surrendered
to. the State of Creorgia, and a part of the UoioD
wnich may be conquered by a foreign enemy.
And he asks triumphantly, are our inferior courts
to remain after our jurisdiction is gone ? This
case rests upon a principle so simple that I am
surprised the honorable member did not perceive
the answer in the very moment when he made
the objection. Is it by our act that a country is
taken from us by a foreign enemy ? Is it by our
consent that our jurisdiction is lost? I had the
honor, in speaking the other day, expressly, and
for the most obvious reasons, to except the case of
conquest. As well might we contend for the gov-
ernment of a town swallowed up by an earthquake.
89
HISTORY OF CONGRESS.
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Judiciary System.
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Mr. Mason explained. — He had supposed the
case of territory conquered, and afterwards ceded
to the conqueror, or some other territory ceded in
lieu of it.
Mr. Morris. — The case is precisely the same ;
until after the peace the conquest is not complete.
Everybody knows that until the cession by treaty,
the original owner has the postliminary right to
a territory taken from him. Beyond all question,
where Congress are compelled to cede the terri-
tory, the judges can no longer exist unless the
new soyereign confer the office. Over such ter-
ritory the authority of the Constitution ceases,
and of course the rights which it confers.
It is said, the judicial institution is intended for
the benefit of the people, and not of the judge ;
and it is complained of, that in speaking of the
office, we say it is hU office. Undoubtedly the
institution is for the benefit of the people. But the
question remains, how will it be rendered most
beneficial ? Is it by making the judge independ-
ent, by making it his office, or is it by placing him
in a state of abject denendence, so that the office
shall be bis to-day and belong to another to-mor-
row ? Let the gentleman hear the words of the
Constitution : It speaks of their offices ; conse-
quently, as applied to a single judge, oihis office,
to be exercised by him for the benefit of the peo-
ple of America, to which exercise his independ-
ence is as necessary as his office.
The gentleman from Virginia has, on this oc-
casion, likened the judge to a bridge, and to vari-
. ous other objects i but I hope for his pardon, if,
while I admire the lofty flights of his eloouence, I
abstain from noticing observations which I con-
ceive to be utterly irrelevant.
The same honorable member has not only given
us Ws history of the Supreme Court, but has told
us of the manner in which they do business, and
expressed his fears that, having little else to do,
they wo^ld do mischief. We are not competent,
sir, to examine, nor ought we to prejudge, their
conduct. I am persuaded they will do their duty,
and presume thev will have the decency to believe
that we do our auty. In so far as they may be
busied with the great mischief of checking the
Legislative or Executive departments in any wan-
ton invasion of our rights, I shall rejoice in that
mischief. I hope, indeed, they will not be so bu-
sied, because I hope we shall give them no cause.
Bat I also hope tbey will keep an eagle eye upon
us lest we should. - It was partly for this pur-
pose they were established, and, I trust, that wnen
properly called on, they wiH dare to act. I know
this doctrine is unpleasant; I know it is more
popular to appeal to public opinion — that equivo-
cal, transient bein^, which exists nowhere and
everywhere. But if ever the occasion calls for it,
I trust the Supreme Court will not neglect doing
the gpreat mischief of saving this Constitution,
which can be done much better by their delibera-
tions, than by resorting to what are called revolu-
tionary measures.
The honorable member from North Carolina,
sore pressed by the delicate situation in which he
is placed, thinks he has discovered a new argu-
ment in favor of the vote which he is instructed
to give. As far as I can enter into bis ideas, and
trace their progress, he seems to have assumed
the position which was to be proved, and then
search through the Constitution, not to discover
whether the Legislature have the right contend-
ed for, but whetLer, admitting them to possess it,
there may not be something which might not
comport with that idea. I shall state the honor-
able member's argument as I understand it, and
if mistaken, pray to be corrected. He read to us
that clause which relates to impeachment, and
coin|Miring it with that which fixes the tenure of
judicial office, has observed that this clause must
relate solely to a removal by the Executive pow-
er, whose right to remove, though not, indeed, any-
where mentioned in the Constitution, has been
admitted in a practice founded on Legislative con-
struction.
That, as the tenure of the office is during good
behaviour, and as the clause respecting impeach-
ment does not specify misbehaviour, there is evi-
dently a cause 01 removal, which cannot be reach-
ed by impeachment, and, of course, (the Execu-
tive not beinff permitted to remove,) the right
must uecessarilv devolve on the Legislature. Is
this the honorable member's arguinent ? If it be,
the reply is very simple. Misbihaviour is not a
term known in our law \ the idea is expressed by
the word misdemeanor; which word is in the
clause respecting impeachments. Taking, there-
fore, the two together, and speaking plain old
English, the Constitution says : " The judges shall
I hold their offices so long as they demean them-
* selves well ; but if they shall misdemean, if they
^ shall, on impeachment, be convicted of misdea-
^ meanor, they shall be removed." Thus, sir, the
honorable member will find that the one clause is
just as broad as the other. He will see, therefore,
that the Legislature can assume no right from the
deficiency of either, and will find that this clause
which he relied on, goes, if rightly understood, to
the confirmation of our doctrine.
Is there a number of this House, who can lay
his hand on his hear^, and say that, consistently
with the plain words of our Constitution, we have
a right to repeal this law ? I believe not. And
if we undertake to construe this Constitution to
our purposes, and say that public opinion is to be
our judffe, there is an end to all constitutions. To
what will not this dangerous doctrine lead 1 Should
it to-day be the popiuar wish to destroy the First
Magistrate, you can destroy him ; and should he
to-morrow be able to conciliate to him the popu-
lar will and lead them to wish for your destruc-
tion, it is easily effected. Adopt this principle,
and the whim of the moment will not only be the
law, but the Constitution of our country.
The gentleman from Virginia has mentioned a
great nation brought to the feet of one of her ser-
vants. But why is she in that situation ? Is it
not because popular opinion was called on to de-
cide everything, until those who wore bayonets
decided for all the rest ? Our situation is peculiar.
At present our national compact can prevent a
State from acting hostilely towards the general
91
HISTORY OF CONGRESS.
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Senate.
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interest. But let this compact be destroyed, and
each State becomes instantaneously vested with
absolute sovereignty. Is there no instance of a
similar situation to be found in history ? Look at
the States of Greece. They were once in a con-
dition not unlike to that in which we should then
stand. They treated the recommendations of their
Amphictionic Council (which was more a meet-
ing of Ambassadors than a Legislative assembly)
as we did the resolutions of the old Congress. Are
we wise? So were they. Are we valiant? They
also were brave. Have we one common language,
and are we united under one head ? In this, also,
there was a strong resemblance. But, bv their
divisions, they become at first victims to the am-
bition of Philip, and were at length swallowed up
in the Roman empire. Are we to form an ex-
ception to the general principles of nature, and to
all the examples of history i And are the max-
ims of experience to become false, when applied
to our fate ?
Some, indeed, flatter themselves that our desti-
ny will be like that of Rome. Such, indeed, it
might be, if we had the same wise but vile aris-
tocracy, under whose guidance they became the
masters of the world . But we have not that strong
aristocratic arm, which can seize a wretched citi-
zen, scourged almost to death by a remorseless
creditor, turn him into the ranks, and bid him, as
a soldier, bear our Eagle in triumph round the
globe ! I hope to God we shall never have such
an abominable institution. But what^ I ask, will
be the situation of these States (organized as they
now are) if, by the dissolution of our national
compact, thev be left to themselves? What is the
probable result? We shall either be the victims
of foreign intrigue, and split into factions, fall un-
der the domination of a foreign Power, or else,
after the misery and torment of civil war, become
the subjects of an usurping military despot. What
but this compact — what but this specific part of
it, can save us from ruin ? The Judicial power,
that fortress of the Constitution, is now to be
overturned. Yes, with honest Aja^^, I would not
only throw a shield before it, I would build around
it a wall of brass. But I am too weak to defend
the rampart against the host of assailants. I must
call to my assistance their good sense, their patri-
otism, and their virtue. Do not, gentlemen, suf-
fer the rage of passion to drive reason from her
seat. If this law be indeed bad, let us join to
remedy the defects. Has it been passed in a man-
ner which wounded your pride, or aroused your
resentment? Have, I conjure you, the magna-
nimity to pardon that ofience. I entreat, I im-
plore you, to sacrifice those angry passions to the
interests of our country. Pour out this pride of
opinion on the altar of patriotism. Let it be an
expiatory libation for the weal of America. Do
not, for Gk>d's sake, do not suffer that pride to
plunge us all into the abyss of ruin. Inaeed, in-
deed, it will be but of little, very little avail, whe-
ther one opinion or the other be right or wrong ;
it will heal no wounds, it will pay no debts, it
will rebuild no ravaged towns. Do not rely on
tluit popular will; which has brought us frail be-
ings into political existence. That opinion is bui
a changeable thin^. It will soon change. This
very measure wiU chang^e it. You will be de-
ceived. Do not, I beseecn you, in reliance on a
foundation so frail, commit the dignity, the har-
mony, the existence of our nation to the wild wind.
Trust not your treasure to the waves. Throw
not your compass and your charts into the ocean.
Do not believe that its billows will waft yon intc*
port. Indeed, indeed, you will be deceired. Cast
not away this only anchor of our safety. I have
seen its progress. I know the difficulties through
which it was obtained. I stand in the presence
of Almighty God, and of the world ; and I de-
clare to you, that if you lose this charter, never.
no, never will you get another ! We are now.
perhaps, arrived at the parting point. Here, even
here, we stand on the brink of fate. Pause — pause!
For Heaven'2» sake, pause !
Mr. Breckbnridge. — It is high time^ Mr. Presi-
dent, that the attention of the Committee should
be again called to the real merits of the qaestioc
under discussion. We have wandered longenough.
with the gentleman in the opposition, in those re
eions of lancy and of terror, to which they have
led us. They must indulge us in returning and
pursuing our object.
I cannot, however, in justice to my feeling, go
into the discussion, without making some remarks
on the manner with which the attempts of thofc
who are in favor of this repeal, have been treated.
It has been echoed and re-echoed at every sentence,
that we are attacking a law, matured by wisdom,
and upon which the rights and security of the na-
tion aepend. That we are about to demolish
the principal pillar in the fabric of our Constitu-
tion, and inereby dissolve the Union : and -we are
politely reminded by the gentleman from Connec-
ticut, that the Roman Government, also once the
favorite of the world, sunk under the rude stroke
of Gothic hands. Without inquiring what has
entitled these honorable gentlemen to assume to
themselves the exclusive guardianship of the Con-
stitution; and without inquiring wnat their at-
tachment to it is ; I do pretend, sir, and without
paying to myself any compliment, that great as
theirs may be, mine is not less. Gentlemen may.
therefore, for the future, save themselves the trou-
ble of attempting to arouse my fears on this subject,
when I once for all assure them, that my duty as
a citizen, and my oath as a Senator, are more op-
erative with me, than the warning voice of any
man, or set of men, from what quarter soever it
may come, and however high the pretensions to
experience and patriotism are, which they may
choose to assume. But, notwithstanding my anx-
iety to preserve inviolate this Constitution, I am
not to be diverted from my object, by every tocsin
of alarm which gentlemen may think fit to sound.
Let me not be told of dangers to the Constitution,
and of dangers to the Union. Contemptible, indeed,
is the basis on which that Constitution rests, poor
is the compliment to the good sense and patriotism
of the people of America, if that Constitution and
their linerties can. as has been contended, be shaken
to the centre by tne repeal of a single law, of but a
93
HISTORY OF CONGRESS.
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January, 1803.
Judiciary System^
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single year's duration; suspicious indeed in its
origin, burdensome and useless to the community,
and affecting simply a few indiyiduals, interested
against that repeal, by paltry pecuniary considera-
tions only.
I shall commence the remarks I am about to
make, by asking a single question, which applies
to all the observations of the gentleman in the op-
position. Has any gentleman shown, or attempt-
ed to show, that the increase of courts and judges
by this law was necessary or justifiable from the
state of thin^, at the time it was passed ? They
have, I admit, attempted to show by reasoning at
a ffreat distance, that they may be wanting here-
after, that our empire is large, that it is populating
fast, and that insurrections might happen. Indeed
the gentlemen .in the opposition have taken differ-
ent and inconsistent eround. The honorable gen-
tleman from New Hampshire, venerable from his
years, and respectable from his talents, tells us, this
law was not the offspring of a night, but has been
well matured. The gentleman from Vermont re-
quests that we may not prostrate measures from
pique. The gentlemen from Massachusetts takes
dinerent ground and denies the power of Congress
to repeal the law; and the gentleman from Con-
necticut says, that the original law establishing the
judiciary was but an experiment; and that expe-
rience was the only sure test of all human con-
trivances.
Now for the consistency of gentlemen. Some
contend that the law was well matured, and ought
not to be dispensed with. Others, that we cannot
repeal it at alt, whether matured or not matured ;
and others, that it is part of a system of experiment.
If, sir, the first law was an experiment, this law
is, of course, an experiment upon an experiment.
Now for the reasoning of the gentleman from Con-
necticut. " Experience is the only sure test of all
regulations ;" therefore you may make an experi-
ment, and even an experiment upon an experiment,
but yet these experiments are unalterable. This
is really an original notion about experiments; that
you may try them to see if they will answer,
but whether they do or not, they are fastened on
you.
The honorable gentleman from Georgia could
not, after two explanations^ atone to the gentleman
from Connecticut for an inadvertent expression,
dropt by him in the warmth of argument, which
carried an insinuation that this law was made in
a passion. Let the gentleman from Connecticut,
therefore, ha ve it as he stated it, that the law passed
with great coolness and deliberation ; if gentlemen
then supposed it was to be an irrepealable experi-
ment, and to be entailed on their country, I will
say, it was a wanton experiment ; I will say more,
it is an experiment which, instead of being justi-
fied by a shadow of necessity, was negatived by
the existing state of things when it was made; and
that it was an experiment never made upon earth
before, to try how courts and judges would answer
without business. The absurdity, moreover, with
respect to this strange doctrine of irrepealable ex-
periments, is increased, because some gentlemen ad-
mit, that you may modify and change the law, but
not so as to affect the judges. I understand them
then on that point to mean, that you may modify
and change tne law as you please, provided you
increase the number of judges, or the expense of
the system ; but that you violate the Constitution,
if you diminish the number of judges, or attempt to
economise the system : or, in other words, it is
Constitutional to abolish any part, or all of the
system, but what relates to the salary part of it ;
which in plain English would be, " ao what you
please, gentlemen, with our system ; but spare, oh
spare those for wliom the system was made, the
^*.
he gentleman from Massachusetts asks for any
instance of an attempt similar to the one under
consideration. If he meant of an example of the
abolition of courts and judges, which had become
unnecessary, I refer him to the examples of Mary-
land and Virginia, already cited ; States composed
of one million two hundred thousand inhabitants,
and composing more than one fifth part of the
Union, wno have each exercised that power. An
instance, exactly or very nearly similar to the one
under consideration, cannot. I suppose, be adduced;
for I would ask him, in my turn, ir he can show me
in the Union, or the universe, an instance of a set
of courts crelited without any business for them to
act on, and beneficial to the judges only ?
The gentleman from Massachusetts has conce-
ded a point, which is at variance with the princi-
pal ground he has taken. He admits, if a judge
in a particular district be incompetent from insan-
ity, aisability, or other sufficient cause, to perform
his duties, Congress might repeal so much of the
law as relates to his district, and thereby put down
that judge. How is this? If a law can be repealed,
and a judge be put down, because he is unable to
discharge the duties of his office, cannot a law be
repealed, and a judge be put down, where he has
no duties to discharge? If, because a judge who
cannot discharge the duties actually assigned him,
(although by the act of Qovernment) may be dis-
pensed with, is it sound reasoning to say, that you
cannot dispense with a judge, although you have
abolished nis duties ? Again, pursuing the gen-
tleman's own case^ if part of a law can be repealed,
and a particular district and judge put down, what
is it that arrests your power, as to all the districts,
and the whole corps of judges?
[Here Mr. J. Mason rose to explain, and said
the gentleman had misunderstood him. The idea
he intended to convey was, that if Congress had
Eower to put down one judge or one district, they
ad the power to put down all the courts and
judges, but that they had no power to do either.]
Mr. BRECKGNRinoE said he was sorry he had
misunderstood the gentleman; he had so noted
his observation ; but he would then beg leave to
notice an observation of the gentleman from New
York, which applies to this part of the subject.
'That gentleman has admitted that you may new-
model your courts for the benefit of the people,
but you cannot affect the judges, for they are in
(to use his expression) under the Constitution;
and he contends that not only the first section of
the third article is imperative, but also the eighth
96
HISTORY OF CONGRESS.
96
Sbnate.
Judiciary System.
January, 1802.
section of the first article, which gives CoDgress
the '* power to constitute tribunals inferior to the
Supreme Court." This last section gives to Con-
gress the power also to pass bankrupt laws, natu- j
ralization laws, tax laws, &c. &c. Are all these i
powers imperative also ? And after you have es-
tablished a post-road, passed a bankrupt law, or a
tax law, are they all irrepealable, and are the offi-
cers created by them all in also under the Consti-
tution? The same construction applies to ail,
and shows them all to be discretional powers.
But this modification is to be for the benefit of the
people. Can it be for the benefit of the people
never to abolish courts? Two instances have
been already cited. And what principle is it
which ought solely to actuate legislators m enact-
ing, modifying, or repealing any law, but the good
of the peop^? Gentlemen really argue as if
they considered courts made for the judges and
not for the people.
Suppose this subject could be discussed by the
people and the judges, what would be the lan-
guage of each ? The people would say, these ad-
ditional courts are totally useless. The judges
would reply, (if they hold the same opinions that
the gentlemen in the opposition do.) that they are
not useless, ibr they tend to inspire terror, and
keep men honest. The people allege there is no
busmess for them to transact. The judges answer,
that the country is increasing fast in population,
and there will be business, perhaps, by and by.
The people contend they ought not to incur an
expense without ^ome advantage. Their honors
reply, it amounts to but one cent a man, and is
not worth growling about. The people, how-
ever, declare their determination to abolish these
courts, as things for which they have no use. The
judges then reply, in the language of the gentle-
man from New York, ^^ You are a den of robbers.
^ your Constitution is gone, and all men fly your
* shores."
The gentleman from Massachusetts admits the
President has power to remove at pleasure all of-
ficers appoiated by him but the judges, but does
not see tne force of my application of it. I apply
it in this way: Although those officers have a
right to hold their offices at the will of the Presi-
dent, and the Legislature cannot remove them
during the continuance of their offices, yet the
Legislature can remove without the will of the
President, by abolishing their offices. In case,
for example, the. excise law is repealed, what will
become of the supervisors, and other officers cre-
ated by that lawi They will go out with the
law ; for an extinguishment of their duties will
necessarily carry with it an extinction of their
offices, whether the President wills it or not.
But ajudge stands on more independent ground.
He shall not be removed at the will of the Presi-
dent, nor be starved out by the Legislature. He
shall be removed from the exercise of his duties
for misbehaviour only, whilst exercising those
duties; and during the continuance of his office,
or, in other words, his duties, the Legislature shall
not diminish the consideration annexed to those
duties. His independence and honesty in office,
therefore, are sufficiently secured against Kxecu-
tive or Legislative influence.
But the gentleman from New York has racked
his very fertile imagination to render familiar to
Us by comparisons this wonderful and unprece-
dented thing — an officer without an office, a judge
without a court, without duties, or without au-
thority. He has likened him to a bridge, to a
boat, to the national debt, and to an eight per
cent, usurer. I will spare your gravity, and tnat
of the Committee, by refraining to examine the
similitude as to the first two objects. What like-
ness is there between the salary of a judge and the
national debt? The national debt is a vested
right — a riffht not accruing for services 'which
may be rendered, but for services or money actu-
ally rendered or advanced. It is a debt, the con-
sideration for which we have acknowledged to
have received, and for the discharge of which we
have pledeed ourselves. It is a debt we are under
moral obligations to pay, having previously re-
ceived from the creditors its equivalent* How
stands the case of the salary, which is said to be
apposite ? Is that a vested right? Is that a debt
for which the community have received an equi-
valent? It is neither. It is a debt which, from
its nature, the public faith cannot stand pledged lo
pay, except so far only as the services actually
performed require ; it being dependent in its very
creation on services to be performed, and which may
be dispensed with when they are no longer wanted.
Is tne case of the eight per cent, usurer more
apposite ? If the occasions of men induce them
to resort to the hoards of usurers, it is a voluntary
act ; they know its intent and consequences, and
they ought, in justice, to be bound by their con-
tract. Altnough Shylock may not be entitled to
his pound of flesh, yet he is entitled to his usury
and interest. And the case of the petty usurer
stands on the same ground with all those import-
ant asurers who loaned at eight per cent, their
money and stock to the United States during her
late preparations to fight the French.
The gentleman from New York expresses his
utter astonishment at the idea of judges and courts
beinff too numerous, and refers us to the example
of Alfred, whose courts and judges were so nu-
merous and well organized, and had imposed such
terror into his kingdom, that a purse of gold might
lie in safety on the highway. I remember read
ing, long since, of these hundred courts, courts
leet, courts baron, &c., and, if I am not mistaken,
sir, he had a court of chivalry, too, of much about
the .same value and advantage in hit kingdom as
your additional courts are here. But if the gen-
tleman meditates such extension and perfection in
our Judicial system, why not resort to the foun-
tain-head, and take example from Moses, who is
certainly higher authority. He, sir, established his
rulers, or judges, of thousands, of hundreds, of fif-
ties, and of tens; and men, too, says the book, hat-
ing covetousness; that is, I presume, having no
salaries. But I take it that both Alfred and Moses
had a wider range in legislation than this Senate,
and therefore their regulations cannot be very ap-
plicable.
97
HISTORY OF CONGRESS.
98
January, 1802.
Judiciary System.
Senate.
The gentlemen both from New York and Con-
necticut have pressed upon us the policy of in-
creasing courts and judges, to prevent crimes and
wrongs, to protect the weak against the strong,
and insure virtue and humanity among the people.
I deny both the proposition and inference drawn
from it, in the extent contended for. From whence,
I ask, do grentlemen draw their authority for such
extensive legislation ? From whence arises their
power to pass these laws to prevent crimes, to pro-
tect the weak amnst the strong, and to punish the
guilty ? Not from the Constitution, I will safely
affirm ; for, under it, but three or four species of
crime are punishable by Federal laws, to wit : trea-
son, piracies, and felonies on the high seas, offences
against the laws of nations, and counterfeiters of
securities or coin of the United States. These
constitute their powers on the subject of criminal
jurisprudence, and are the sum total of our powers,
Tvritten or unwritten ; unless, indeed, the gentle-
men draw some of their authority for their exten-
sive notions of legislation, from the lexnonscripta
of Alfred's country, which I am told some gen-
tlemen consider as attaching itself to our Consti-
tution. But, admitting the proposition to be true,
is the conclusion drawn from it well founded, that
a multiplicity of courts and judges inspire ter-
ror, and prevent litigation and the commission of
wrongs, i I confess I am now for the first time to
learn, that to inspire terror and prevent wrongs
you ought to imbody an army of judges ; and that
to support or discourage litigation, you ought to
imbody another set' of men^ their general attend-
ants, called lawyers, who, it seems, for the first
time, are to become peace makers; who, with
their robes and green bags, will strike such terror
into the nation, that a purse of gold may hang in
safety on the highway. Halcyon days these, in-
deed, which are promised from a continuance of
these judges ; and if not visionary, I could then
answer the gentleman from Massachusetts in the
affirmative, that the millenium was indeed ap-
proaching.
The necessity for numerous courts and judges
is also insisted on by suggestions that foreign in-
vasions may happen ; that consequently great
revenues will be wanting, and consequently nu-
merous courts to enforce tneir collection. This is
reasoning at a very great distance indeed from the
subject, to prove its utility. But I am willing to
indulge the gentleman, and admit that invasion
will happen, and annually, if he chooses, and in-
surrections quarterly ; I will then contend, that,
until the population of America amounts to five
times the present number, we shall not need as
many judges as there now are, to administer jus-
tice on all the subjects which can rightfully, un-
der the present Constitution, be carried to Federal
adjudication.
The gentleman from New York has favored us
with another argument on this head, not addressed
to the fears, but to the pride of the people, and
asks if the paltry additional expense ought to oave
any weight, when it cannot amount to more than
one cent a man ? I answer, sir, that one cent a
man, will not, to be sure, oppress the people ; but
7th Con.
this is a very unfair way of appealing to the abil*
ity of the people, by showing them among the
thousand items which compose the aggregate of
their burdens, what each man's proportion is of
one very small item. But as that honorable gen-
tleman has told us, " that he considers the gov-
ernment resting on the reason of man, as a sole-
cism," I should suppose, with due deference to him,
that the better way would be, to govern this ma-
chine, man, to increase the army, rather than the
judiciary. Twenty thousand regulars, properly
disposed of, would make us as honest as Alfred's
subjects, and would cost us only three or four dol'-
lars a head. This too is a kind of terror familiar
in countries like Alfred's ; but an army of judges
is a new experiment, as we have been told this law
is, and was reserved for the politicians of these, our
enlightened times.
Niuch has been said about the hardship which
will arise to judges, who have quitted lucrative
employments and taken seats on the bench, con-
sidering them as permanent provisions. One gen^
tleman describes them as a venerable set of men,
bending under the weight of years, and not pos-
sessing the agility of post-boys : another, as men
who have been induced to abandon the active and
lucrative pursuits of the law. Take them as por-
trayed by either gentleman. If they are men of
the first description, there can be little hardship
in permitting them to return to that state of tran->
quillity and retirement, from which they must
have oeen no doubt reluctantly drawn ; and to
which their age and infirmities must again invite
their return. If they are men of the last descrip-
tion, can they not readily return to those same
active and lucrative pursuits which they had quit-
ted? Have their talents and faculties, for the
pursuits to which they were bred, been palsied, by
a seat for a single year on the bench 1 And can
that single year's derangement of their affairs be
retributed only, by a pension of two thousand dol-
lars a year for life? Such calculations and de-
mands must illy comport with the characters of
those of the first description ; and they are poor
compliments indeed to the talents, legal acquire-
ments, and leffal standing of the second. But is
there no hardship on the side of the community ?
Is it enough for them to be told by these judges,
true it is, you have established a useless set of
courts ; but we have been lucky enough to get
into office, the Constitution protects us there, and
^et us out if you can ? I doubt, sir, this reason-
ing would not be satisfactory, to men possessing
common honesty, and the ordinary notions of right
and wrong. It would not, however, be taken as a
satisfactory set off against the fifty thousand dol-
lars annually.
The gentleman from New York bas contended
strongly against an idea which he apprehends is
entertained, of increasing the power of the States,
by lessening your Federal courts.
I hold out no such idea ; it was a surmise of the
gentleman. I wish the Federal Government to
possess and exercise all its rightful powers, but no
more. I wish the States also to be left in the ex-
ercise of theirs. I do not wish to see everything
99
HISTORY OF CONGRESS.
100
Senate.
Judiciary System,
Jandart. 1802.
valuable extracted from them. I do DOt wish to
see all possible subjects drawn into the great vor-
tex of Federal legislation and adjudication. I do
not, in short, wish, as some gentlemen niay do, tc
see one mighty^ and consolidated sovereignty col-
lected from and erected on the ruins of all the
State sovereignties.
It is now growing late, and the Committee must
be fatigued ; I will trespass very little longer on
them. Many of the observations which 1 hpive
answered, were, it is true, very foreign and irrel-
evant to the subject. Tney were, it is true, but
the eleaninffs. as the gentlemen who have pre-
ceded me left little for me to answer.
But permit me, for a single moment, to draw
gentlemen's attention to the real merits of this
question, and ask, have the arguments been fairly
and satisfactorily answered by the gentlemen in
the opposition; arguments which went to the
many difficulties and absurdities which would
grow out of the Constitution under thB construc-
tion against which I have contended ; which went
to show, that the Constitution could only be fairly
and rationally construed to secure the independ-
ency of a judge in office during the continuance
of that office ; which went to show, that the power
of Congress to erect inferior courts was discre-
by the power to abolish them; that by the con-
struction contended for, sinecure offices for life
would be erected under the Constitution ; that the
absurdity of an officer without an office would
exist ; that the power of legislation on judicial
subjects would in effect be arrested ; indeed, de-
stroyed ; and that it would produce the extraordi-
nary phenomenon in our Government of an offi-
cer not amenable to your laws, to your Constitu-
tion, or to the people themselves ? I appeal to
gentlemen if these nave been fairly and satisfac-
torily answered ? They have not.
seat* with which he had been honored by the
Senate during the preceding part of this debate.
his duty had obliged him to pay particular atten-
tion to gentlemen who rose to offer their opinioDs:
he had felt himself pleased and instructed by one
of the most luminous discussions, in both rieirs
of the question, that he had ever witnessed, w^hich
he hoped and trusted would ffuide the Senate to
a usetul and proper result. In this late sta^e of
the debate it could not be expected of him to be
able to contribute anything new or important.
But, as gentlemen had so generally thought proper
to express their opinions, he would not withhold
a public declaration of his own.
He thought the range of this question and the
field of argument had been made more extensive
than strictly related to the question; bat they
might be useful in leading to a final determination
on the subject of the resolution now under con-
sideration. The remarks that had been made of
improper motives and designs, on the one side and
on the other, either that there was an intention to
urge forward the powers of the Govern men t, till
it was carried altogether beyond its principles, or
that there was an inveterate system of opposition
to it, which sought nothing less than its over-
throw, he should take no notice of, as tbe^ had
tional, and was therefore necessarily accompanied already been extended further than he had wished
Friday, January 15.
Aaron Burr, Vice President of the United
States and President of the Senate, attended.
The bill, authorizing the discharge of John
Hobby from his confinement, was read the second
time^nd referred to Messrs. Baldwin, J. Mason,
and Tracy, to consider and report thereon.
The Senate took into consideration their amend-
His respect for worthy gentlemen, with the great-
er part of whom he had so lone labored in our
public councils, his respect for the people w^hom
they represented, and lor the State Legislatures,
who had, on this occasion, preferred them to their
fellow-citizens, it is to be presumed, from full ex-
perience of their talents and virtues, forbade him
to entertain any doubt of their desire to promote
the best interests of their country, and to preserve
our excellent Constitution, which they are all
sworn to support. If, at any time, observations
different from these escaped him, he hoped they
would be considered as the suggestions or his own
infirmity, and not the result of deliberate reflec-
tion. His own general opinion on such subjects
was, that it is the nature of all delected power
to increase ; it has been very aptly said, to be like
the screw in mechanics ; it holds all it gains, and
every turn gains a little niore; the power keeps
constantly accumulating, till it becomes absolute-
ly insupportable, and then falls in ruins in a tre-
mendous crash, and the accumulation begins
again ; so that the history of civil society is but a
ments disagreed to by the House of Representa- .
tives, to the bill concerning the library for the use I general view of these vast waves following each
of both Houses of Congress; and I other, oftentimes in dreadful succession. That this
Resolved^ That they do insist on the said amend- 1 was the tendency of society, he thought appeared
ments, ask a conference thereon, and that Messrs.
Tracy and Baldwin be managers on the part of
the Senate.
JUDICIARY SYSTEM.
The Senate resumed the consideration of the
motion made on the 6th instant, that the act of
Congress passed on the 13th day of February,
1801, entitled ^ An act to provide for the more
convenient organization of the Courts of the Uni-
ted States," ought to be repealed.
Mr. Baldwin, of Georgia, observed, that in the
in some measure from our own short history,
whether viewed in relation to our State or Fede-
ral Governments ; several of them had already
made considerable advances in this course ; he
knew of none of them that had declined. Though
he hoped and trusted that this fatal progression
would be slower in our country than it had ever
*ln the absence of the Vice President of the United
States, Mr. Baldwin had been President pro tern, of
the Senate, firom the commencement of the debate,
until this day, when the Vice President took his seat
101
HISTORY OF CONGRESS,
102
January, 1802.
Judiciary System.
Senate.
been before on the face of the earth, and that it
Tvould allow to us many ages of great political
bappiness, yet he did not expect it would oe found
in the end to be an exception to his general re-
mark. He alluded to several instances in the
Federal Grovernment, and observed generally, that
as we were now in the thirteenth year under the
present Constitution, as we had been thirteen
years under the old system of the Articles of Con-
tederation, he thought it useful in our reflections
to make u comparison between them. During the
first period of tnirteen years, the Federal Govern-
ment, as it was called, possessed neither Legisla-
tive nor Judicial power, nor any revenue at all ;
they were not able even to form their own body
by compelling the attendance of their members ;
tbey attend ecL or were absent, as they pleased.
Their ideas of the encroachments that it was ne-
cessary to make on the powers that were then in
tbe possession of the State Governments, ap-
peared to have been very different from ours;
they carried on a long and obstinate war, and, as
tbey supposed, had nearly finished a settlement ot
tbeir accounts ; and yet there was much less com-
plaint of a want of power, or uneasiness and strug-
gles for more, at tne close of that first period of
thirteen years, than at the present time. He should
not enlarge on this view of the subject : when he
saw that he was speaking in the assembly of the
most ancient statesmen of our country, he knew
that, thoush he barely elanced at the ideas, their
own recollections would present them in all their
extent. The observations that had been before
made by gentlemen on this view, had been so gen-
eral, that be could only meet and qualify them by
other general observations, and he thought they
did not furnish a foundation to apprehend an over-
throw of the Government.
The resolution now under consideration pro-
poses to reconsider and repeal the new Judiciary
law passed last session. It does not follow that
this is an effort of a general plan of destruction
as applied to our Federal Government. All pub-
lic bodies must, at some times, review their own
proceedings, while the maxim remains true, that
It is the lot of human nature to err, this must be
the case; parliamentary assemblies have provi-
sions for reconsidering their questions, and courts
of justice for granting new trials.
The first and most natural source of argument
that presents itself on such occasions is, the cir-
cumstances in which the act took place ; to in-
quire whether there was any surprise or unfair-
ness, not according to principle or customary form.
Gentlemen have bad the candor several times to
acknowledge, and it was very fresh in his own
recollection, that this was the case on the passage
of the law which the motion proposes to repeal,
that it was verily believed at the time not to pos-
sess an actual majority of the votes of the other
House, and therefore every proposed amendment
was rejected by its friends in the Senate, as they
did not consider it safe to send it back open to any
question in the House of Representatives. He
instanced the proposed amendment to strike out
Bairdstown, the place fixed by the law for the
court in Kentucky, which was acknowledged to
be a proper amendment, and afterwards intro-
duced in a supplemental law. He said he was
himself now acting under an impression that the
law never did unite here in Us favor an actual
majority of votes, according to the rules of the
Senate and of the Constitution. He then read
the rule of the Senate which forbids a Senator to
vote on a question where he is interested, and a
clause in section six, article one, of the Constitu-
tion, which prohibits a Senator or Representative
from making an office to bold it himself. He re-
ferred, also, to the settled principle in the investi-
gation of truth, that a person's relation of a com-
mon matter of fact in a (question of a few shil-
lings value could not be relied on. if he had even
a remote interest in the result ot it. He hoped
his assurances would be accepted ; that be did not
make these remarks to excite any unpleasant sen-
sations. He wished to avoid them ; be touched
them as lightly as he could, giving them their
proper place in the argument ; he was sensible
they did not prove that law to be a bad one ; but
they formed the first and the strongest reason why
the subject should be reconsidered, which is the
main object of the present motion ; for it was open
to all amendments in its progress.
Another obvious source of argument, Mr. B.
saidj on this subject of repeal, is, the comparative
merit between this new Judiciary law and tbe
old one, which will be restored, if this is repealed,
with such other provisions as may be thought ne-
cessary. The wbole of the discussion at the last
session was on this ground ; it is familiar to us
all ; it was then ample and convincing, so as to
produce the effect which has been acknowledged ;
no doubt it would do the same if repeated at this
time ; it is to be presumed the effect of it is not
lost ; to pursue it in all its details on this occa-
sion would make the discussion altogether too pro-
lix and. tedious. There were, however, two or
three points in the comparison, he begged leave a
little to dwell upon. In taking a general look at
the two systems, the strongest point of distinction
which seizes the first view, is, that in the old sys-
tem the same judges hold the Supreme Court
here, and a court in each of the States, with the
exception of the States over the mountains ; in
the new system, now proposed to be repealed, this
is not the case ; the courts in the several States
are held by different judges. This had ever ap-
peared to him a radical and vital failure in the
new system ; it deprives tbe judges of the oppor-
tunity of a full knowledge of local laws and usa-
ges, and destroys the possibility of uniformity ;
it is also a main artery of healthful circulation in
the body politic. In giving a satisfactory admin-
istration of a Government over a country of this
vast extent, the great object must be to avoid the
necessity of dragging the people from tbe remote
extremes, the distance of thousands of miles, to
the seat of our Grovernment, or far from their
homes, where they cannot have the usual advan-
tages in courts of justice. While two of the
judges of the Supreme Court held a court in each
State, this was almost entirely avoided, except in
103
HISTORY OF CONGRESS.
104
Senate.
Judiciary System,
January, 1802.
some of the largest States. The suits were rare-
ly determined at the first court ; at the second
court, the juds^es were considered as bringing the
sense of the Supreme Court on the subject ; it
seemed to giv^e as satisfactory a conclusion to the
business as if the parties had been themselves be-
fore the Supreme Court. Though gentlemen all
appear to submit to the force of this argument, yet
they suppose they defeat it by the vague and gen-
eral declaration, that experience has proved it to
be impracticable ; that we should have no more
venerable judges; that men must be appointed for
their agility rather than their wisdom, <fec. He
averred experience had determined no such thing;
very venerable judges had gone through that duty
from the beginning of the Government, without
any apparent injury to their constitutions, with as
few resignations as ordinarily take place among
the State judges, and, in fact, with less bodily la-
bor than is required of many members of Con-
gress for a much smaller compensation. He
thought experience proved that men equal to the
labor, and also well fitted for the office, might be
found, rather than give up so indispensable a pro-
vision, esjpecially as, under the present motion,
additional provisions may be made to render the
system more practicable and less laborious. The
ciianse that had been made was, no doubt, a great
relief to the judges; but we have other and more
numerous constituents whose relief must also be
attended to.
2. Another strong point in the comparative
view of the two systems is, that the new law now
proposed to be repealed, attempts to draw off
more business from the State courts to the Federal
courts. When gentlemen talk of expediency, may
they not be asked, what is the expediency of that
measure ? Will it make a more convenient and
complete organization ? When they talk of carry-
ing justice to the door of every man, may they
not be asked, whether that is most perfectly car-
rying justice to the door of every man ? His sit-
uation in the former part of the debate was such,
that his duty would not permit him to take notes
of what was then said, but if he had the arguments
of the gentlemen on this head before him, he
should be pleased in applying it to every one of
them, to see how they would appear to defeat
themselves by the application of this principle.
This, said he, goes directly to the great defect in
the theory of the Federal Government, which has
at all times given uneasy apprehensions to its best
friends respecting the final suecess of this vast and
benevolent experiment in Government. The idea
of a Continent uniting under a General Govenx-
ment, which should settle general regulations, and
do away the most common causes of war, is not
a thought so much out of the ordinary subjects of
reflection as to require any inventive or profound
genius to call it into view. It is readily conceived,
that the Eastern Continent, as well as this West-
ern, miffht have often reflected on the practica-
bility of this vast experiment; the great discour-
agement which has probably prevented it. has
been, that the immense and unwieldy enginery
which would be necessary to carry it on, to ad*
minister its laws, and manage its money transac-
tions, with tolerable intelligence and fidelity, and
keep up the great vital circulation, is not i^ithin
the compass of human faculties and endowments.
If ours fails, it will be from that cause; its wisest
and best friends appear always to have been aware
of it, and therefore have, as far as possible, direct-
ed it to a few great and general regulations,
which seem indispensable, and which were least
difficult <in their operation ; but that it should be
put to ordinary business, then well done by the
States, as though in its nature better suited to it
than ordinary Governments, had always appeared
to him to be the most unpromising direction that
could be given to it. He considered that as the
strongest possible objection to the new Judiciary
law, now proposed to be repealed, that it was un-
necessarily drawing the business from the States,
where it was as well lodged, and probably as well
conducted, as in any Grovernment on earth, to the
Federal establishment, where, if it was possible to
conduct it at all, it was not possible to conduct it
so well, and so much to the satisfaction of the
people, for whom alone Governments are insti-
tuted.
The third source of argument which he should
notice, was the document No. 8, sent by the Ex-
ecutive. As this had already been the principal
topic of argument to several gentlemen, and had
been placed in so irresistible a point of view, in
support of the proposed resolution, he should add
but few words upon it. It is said the document is
incorrect; it is sufficiently correct for all the
purposes of the argument, which depends not on
there being three or four more or less suits in a
particular place, but to show that the old Judicia-
ry system was perfectly sufficient for all the busi-
ness, and that the business was actually decreas-
ing when the system was extended. To this the
document is perfectly sufficient and conclusive.
On this it has been observed, that there being but
little business, and that decreasing, is so far from
being an objection to the system, that it is the best
argument in its favor ; but this proves the per-
fection of the old Judiciary system, which was the
cause of it and is now proposed to be restored,
and not the new, which is yet scarcely got into
operation. If the decrease of business proved the
necessity of the further extent of the system, in
the new Judiciary law, the continuing to de-
crease, which appears since that time, proves
that the system ought now to be still further ex-
tended.
Mr. B. said, he would proceed to submit a few
remarks on the view that had been taken of the
subject in its relation to the Constitution. It
seems that this part of the Constitution is consid-
ered as capable of different meanings, and from so
many different opinions expressed upon it, he had
no doubt it was the case. Although Governments
of written laws, and written constitutions, are un-
doubtedly a ^reat and invaluable security to the
regular administration of public affairs, yet it must
be acknowledged, that, like everything human,
they are imperfect ; they clearly define and setde
many things which would otherwise be afloat ;
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HISTORY OF CONGRESS.
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but they do not settle everything ; questions will
arise in administering them, which occasion hon-
est doubts. When a new law is passed, the most
upright and enlightened courts require a length
of time to settle the practical questions under it,
and to give definitive meaning and precision to
all its parts. This must be more likely to occur
in written constitutions, which embrace such va-
riety of important subjects, generally in a very
small compass. Many questions of this kind have
already been so far settled by practice on our Con-
stitution. that they have rarely been stirred of late.
Those occasions had been represented at the time,
as very threatening to the Government; Congress
was then nearly equally divided upon them, and
they did not. in the end, prove so disastrous as had
been predicted; they had generally terminated in
favor of the strict rather than the literal construc-
tion of the instrument, not to make the words
cover the most that they possibly could. It had
been contended in the early years of the Govern-
ment, repeatedly, and with much earnestness, that
the preamble or the Constitution was a grant of
powers, and when a measure was proposed, if it
could be shown to have a tendency " to form a
more perfect union, establish justice, and insure
domestic tranquillity, dbc, it was Constitutional ;
the words "general welfare" in article 1, section
8, had been often urged for the same purpose, and
as authorizing Congress to build manumcturing
towns, a National University, and to carry on any
pecuniary enterprises, with the public money ; de-
liberate practice seems for many years to have
settled the construction that those words should
not be considered as a distinct grant of power, but
a limitation of the power granted in tne former
part of the article, to lay and collect taxes, &c.
He instanced also the power of the President to
remove officers, and several others to the same
effect. It was some reward, he said, for the trou-
ble they had on similar occasions, that the greater
part appeared now to be settled, as such instances
occurred much less frequently than formerly : the
one which now presents itself is new ; he express-
ed his confidence that a result as proper and satis-
factory would take place on this, as on former
occasions.
He believed there were several points of this
nature in relation to the Judiciary on which the
other departments of the Government considered
themselves as yet to have no settled practice ; on
which he observed generally, that if it had been
intended to convey those distinguished powers
which have lately been claimed in their favor, it
might naturally have been expected that it would
have been done in very conspicuous characters,
and not left to be obscurely explored by construc-
tion, not enlightened by the least recollection from
anybody, on a subject and on an occasion certainly
of the most impressive kind, and so little likely
to have been forgotten. He said, the extent that
is now claimed to those words in article 3, section
1, *^ that the judges should hold their offices dur-
ing good behaviour," was greater than he had be-
fore contemplated. His own judgment adopted
4he construction that had beeii given by several
gentlemen who supported the resolution, and
which they had illustrated so much at large, and
so ably supported, that he should add biit few
words upon it. Tbe phrase creating or establish-
ing office, is familiar in our Constitution and laws,
and may be done by the Constitution or by the
Legislature ; its attributes are like the' ordinary
attributes of legislation, to be conducted as the
wisdom of the Legislature, and the circumstances
of the country, may direct. Office, m its original
use. is synonymous with duty. When the system
of duties is so particularly defined and prescribed
by the Constitution, that the functionary is able
to go on in the discharge of the duties, the office
is created or established by the Constitution ;
when this is done by law, it is said to be created
or established by law ; the first may be of equal
duration with tne Constitution ; when it is created
by law it may be of equal duration with the law,
but in neither case can it be of longer duration ;
to suppose it, appeared to him absurd. When it
is said, *^ the judges shall hold their offices dur-
ing good behaviour," the first and obvious mean-
ing is, that it should be theirs during life, or as
long as there was such an office, unless tney re-
signed or were removed for misbehaviour, that it
should not be taken from them to be given to an-
other. In such questions of constructions as to
the meaning of words and phrases, it is verv diffi-
cult to prove that they must mean precisely this
and notning else ; it was satisfactory to him that
this construction fully satisfies the meaning of the
words : without doing violence to the other parts
of the instrument, it does not interfere with and
destroy the words which gave the Legislative
powers to Congress. It is Known that the im-
portance of the integrity of Legislative power,
which is sometime^ spoken of under the expres-
sion " omnipotence oi Parliament," is at least as
favorite a part of the theory which we have been
most in the habit of consulting, as the independ-
ence of the judges, particularly in the extent
which it is now proposed to give it. This clause
is speaking of the tenure of the office, and not of
the existence of the office; that had been aptly dis-
posed of in' that part of the instrument which is
on that subject, and is to be sought for among the
Legislative powers and prohibitions of power.
On the tenure of office, the Constitution says,
"the President shall hold his office for four years.
Senators for six years," «fcc., "judges during gooa
behaviour."
All these suppose the office to be in existence,
but are not designed to authorize the functionaries
to hold over beyond that period, or to affect the
power which is given to change those instru-
ments. The judges shall have the highest possi-
ble tenure, they shall hold their offices as long as
the Constitution of the country, and the constitu-
tion of their offices exist, if they behave well. He
could not consider the Constitution as contem-
plating their surviving or holding beyond the ex-
istence of the Constitution of the country, or the
constitution of their office. It would be a very
strained construction to consider that as intended.
It would also be a very useless one ; it goes to
107
HISTORY OF CONGRESS.
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prevent the Legislature from the right to make
laws on the subject, as the circumstances of the
country may require, without which he did nut
see how the Government could be carried on, and
yet does not secure the judges from intolerable
persecutions and oppressions by those laws; in
short, it does all the harm and does no good.
The more violent partisans of this theory of
independence of judfi^es say, that our construction
destroys the principle altogether, that the Consti-
tution might as well have said nothing, that it
leaves the judges entirely at the mercy of the Le-
gislature. This is arguing from the abuse of pow-
er, and ought not to be admitted. It is not to be
presumed that when a Constitution or a Judiciary
system is well adapted to the circumstances of the
country, and gives satisfaction to the people, that
it will be lightly changed or altered, or that it
can be put down or destroyed merely to get rid of
the officers; they may abuse any other article of
power to as great excess ; they might prescribe
intolerable duties, as has been observed, and thus
oblige the judges to resign, &c. He would not
pretend to deny but that the words might be
taken in a more extensive scale, but he thought
this the most natural, and sufficient to satisfy them,
and that there are not many pages in the Consti-
tution in which as probable and promising a crit-
icism as the one that has been made on this occa-
sion, might not be taken and introduced to disturb
and unsettle our practice. It is to be recollected
that this theory of the independence of judges has
already been carried by us further than anybody
else has carried it, in placing them beyond the
reach of removal, on the joint address of both
branches of the Legislature ; he was not convinced
that any important effects had flowed from it, or
that experience had as yet determined anything so
certain and encouraging on this theory, as, at
this time, to warrant a further extension of it by
construction.
Another meaning which has been given to the
words, is. that the Legislative power on this sub-
ject shall remain entire, to institute and shape the
courts as they may think proper, with the one ex-
ception, that " there must be one Supreme Couri;"
but that judges, once appointed, are authorized
to hold their pecuniary emoluments during life,
unless removed by impeachment. This construc-
tion does not go to defeat the proposed resolution ;
the resolution says nothing about what shall be
done with the present judges; they may get their
full salaries during life, if it is their Constitutional
right. He thought that of very small importance
in the argument, and hoped those gentlemen
would not be prevented by it from voting for the
resolution, if tney thought it had been sufficiently
supported by arguments derived from the nature
of the subject, which he thought was the true
ground on which the question ought to turn.
But a much more extravagant construction on
those words, he said, had been taken ; that the
words^ *Uhey shall hold their offices during good
behaviour," were to be considered as a limitation
of the power of the Legislature in creating and
fashioning their offices ; that the offices are to be
considered as theirs, as a vested right ; that ii
would be absurd to say they should hold their of-
fices, that they were a vested right, &c., when
they mi^ht any day be taken away by a change
of the Constitution, or a repeal of the law which
creates it, and which is the constitution to that
office; that you should not kill the man, but
might sink the ship on which his life depended.
Some also lay particular stress on the words
" their offices,'' as meaning a particular and defin-
ite system of duties, which the judges had receiv-
ed from the Government by the contract; that the
Legislnture had no riffht greatly to vary or change
this definite system of duties, so as to make it very
burdensome and oblige them to resign, and in that
way affect this all-important provision of the
Constitution, the independence of judges. This
appeared to him so extravagant, and inevitably
led to such a train of consequences, as had been
fully stated by those who had gone before him—
he was so confident it could not be adopted and
practised upon, that he scarcely apprehended any
danger from it. To be sure, if the offices are
theirs, a vested right, a matter of contract between
them and the Government, there is an end to all
f>ower in the Legislature to change them, or even
egislate upon them, without the consent of the
judges ; they must survive the law creating them ;
and they must also survive, even though the Con-
stitution itself should be changed. If any con-
struction does violence to the Constitution, and
defeats its most essential provisions, this is the
one, and needs to be made the subject of all the
warnings which had been addressed to us on those
important grounds.
Mr. HiLLHOusfi, of Connecticut, observed, that
he opposed the passage of the law now proposed
to be repealed ; but for the purpose of getting rid
of a law \Vhich he did not like, he could not feel
himself justified in tearing out a leaf of the Con-
stitution. In attempting to correct an error of a
former Legislature, we should be careful not to
commit one, in its consequences, more fatal than
the first. He did not hesitate to declare it as his
opinion, that not only the law under considera-
tion, but every other that had been passed on that
subject, might be repealed ; but he was surprised
to hear it said that this could be done in a way
that should deprive a judge, duly appointed, of his
office and salary. The words of the Constitution
are direct and positive, that '* the judges both of
' the supreme and inferior courts shall hold their
^ offices during good behaviour ; and shall, at stated
' times, receive for their services a compensation
^ which shall not be diminished during their con-
' tinuance in office." The Constitution no where
says that the Judiciary system of the United
States, when once formed, cannot be altered, the
courts new organized, old ones put down, and new
ones created ; that is left to Legislative discretion,
under this restriction only, that there shall always
be a Supreme Court, and that no judge shall be
deprived of his office or salary. To abolish a
court, without destroying (he office or salary of
the judge, has not in practice been found difiicult.
Most of tne States, where judges hold their offi-
109
HISTORY OF CONGRESS.
110
January, 1802.
Judiciary System.
Senate.
ces during good behaviour, have been in the habit
of doing It ; the United Slates have done it ; but
in no instance has a jadge been deprived of his
office or salary, unless in that stated to have re-
cently happened in Maryland ; which, if the facts
are ri£[htly reported, ouffht not to be respected,
much less imitated oy this Senate. By tne law
of Maryland, courts' had been established, and
judges appointed, who, bv the Constitution, hold
their offices during good behaviour. This law was
repealed, and, during the same session of the Le-
gislature, a new law was passed establishing the
same courts, and almost in the same words of the
former law. What could be the object of this re-
peal? Surely none other than the turning the
judges out of office. Could that be less a viola-
tion of their Constitution than the passing of a
law directly removing from office the same judges?
It is too absurd to say that indirect means may he
used to effect what might not be done by a direct
and positive law, or is absolutely forbidden by the
Constitution to be done at all.
Here Mr. H. stated ;he various laws of Virgi-
nia, in which they new-modelled or altered their
Judiciary system, by which, said he, it appears
that this ancient and important State has ever
been careful not to violate the principle here con-
tended for, and had, in no instance, deprived a
judge of his office or salary.
To justify such a construction of the Constitu-
tion as will warrant a reoeal, it is said if a law
may pass one session authorizing the appointment
of sixteen judges, who cannot be removed, it may
be extended to sixteen thousand — arguing that, be-
cause the power may be abused, that therefore it
does not exist. But will this argument do ? Let
it be tested by other parts of the Constitution.
Congress are not limited in their power to borrow
money, or raise armies, which, during the period
of one Congress, might be used to the total and
irretrievable ruin of the nation. The treaty-
making power is vested in the President and Sen-
ate^ a power which has been recently exercised in
ratifying the convention with France, by which
is relinquished the claims of the citizens of the
United States for spoliation to a great amount ;
there is nothing in tne Constitution that restrains
this power or tne abuse of it, or that would have
prevented the introduction of an article into this
same convention stipulating the payment to
France of an annual tribute of twenty or thirty
millions of dollars, a sum absolutely ruinous to
the United States. The same remarks will apply
to sundry other powers; yet it will not be said,
that because these powers are liable to this abuse
that therefore they do not exist. There never
was a Constitution or form of Government which
contemplated it as a possible case^ that the Legis-
lative power should be lodged in the hands of
madmen, or which attempted to provide against
such an event. Should this be the unhappy situ-
ation of any country, there would be no remedy
but a resort to revolutionary principles. From
whom is this abuse of power respecting the Judi-
ciary apprehended ? The Legislature ; the same
Legislature in whose hands we are told the rights
and liberties of the people are perfectly safe.
In no part of the Constitution is the President
directly vested with power to remove any one from
office; on that subject it is silent; the restriction
therefore, in relation to the judges, cannot refer to
the President, it must have been intended to secure
them against every department of the Govern-
ment. Any other construction would render the
restriction uitile, and wholly destrov the indepen-
dence of the judges, who would be liable to be re-
moved from office at every session of Congress.
All that would be necessary would be a repeal of
the law under which they hold their appointments,
which, if the principle o/this resolution is admissi-
ble, may be done without any violation of the
Constitution; it will certainly carry us to that ex-
tent. It was most certainly the intention of the
Convention who framed the Constitution, to se-
cure the in dependence of the judges; it was thought
by every one to have been done in a most effectu-
al manner, until this new discovery, which is of
very recent date, of resorting to a repeal of the
law. The independence of the judges is certainly
very important to insure a due administration of
justice, which in every well reffulaied Govern-
ment is considered as a matter of primary impor-
tance. Other departments of the Government
may be more splendid, but courts of justice come
home to every man^s habitation; their importance
is felt by every individual, to them he looks for
security and the protection of his person and pro-
perty.
Tne Constitutions of States are limited in their
operation, and may be easily altered or amended;
different, far different is that of the United States.
This is the bond of union between sixteen sover-
eign independent States, spread over a country of
vast extent, influenced by different views and in-
terests; watching with a jealous eye the move-
ments of the Gkneral Government; and whom it
has been found difficulty and will grow more and
more difficult, to unite in any agreement to alter
or amend this Constitution, and which, if once de-
stroyed by any important or flagrant violation it
is my firm belief will never be renewed.
Mr. Wright, of Maryland, observed, that he
had been called forth early in this debate rather to
defend the State he had the honor to represent,
from the unkind imputation of ^^a violation ot
her Constitution," (in which he flattered himself
he had succeeded even to the satisfaction of the
honorable gentleman himself, who, he presumed,
from misinformation, had been induced to make
it,) than from any desire at that time to enter in-
to the discussion of the merits of the resolution
then under the consideration of the Senate. He,
therefore, hoped he should now be indulged with
a few observations on the merits of the resolution
before them, and although it had already occupied
so much of the time of the Senate, and had been
so ably and so fully discussed by nonorable gen-
tlemen of sreat abilities and experience on both
sides, yet he should presume to call their atten-
tion to such prominent features of the case as had
been impressive on his own mind.
This subject has been brought before us in the
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HISTORY OF CONGRESS.
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Senate.
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Jandabt, 1802.
imposing shape of a recommeDdation of the Pres-
ident of the United States, the national, the con-
stitutional organ of llie Government, in his official
Message to Congress on the state of the Union ; a
duty imposed on him by the express letter of the
Constitution ; a duiy he was bound by the most
solemn obligations Constitutionally to discharge;
a duty that renovated and enlightened America
bad too recently selected him to discharge, to read-
ily to believe he would unconstitutionally abuse.
Sir, this subject has been submitted to the con-
sideration of the Congress of the United States —
a body selected for their patriotism, their wisdom,
and their virtues — the Constitutional or^n of
the legislative will of the nation, in order to inform
their minds, and point their attention to the great
and important subjects on which they were con-
vened to deliberate, on the honest discharge of
which everything valuable to America depends.
This subject had not been brought before them in
a manner to coerce a hasty or an immature decis-
ion on the subject, nor had it been left on the
vaffue foundation of suggestion or conjecture, but
i% had been brought beK)re them in a manner that
imposed deliberation, and had been supported by
documents that had paralyzed and almost sealed
the lips of opposition on the point of its expedi-
ency.
But, however imposing the manner, or how-
ever incontrovertible the matter on which the res-
olution was predicated, yet, honorable gentlemen
are found on this floor to oppose it as a measure
of that Administration they feel indisposed to
support, particularly as it implicates the policy of
the late Administration, and indeed a measujre
which was the work of their own hands, which
mankind at all times have been prone to admire,
and however convinced of their errors, have, with
great reluctance, been brought to confess them.
Sir, it would seem by the course of the argu-
ments on the present question, that we had it in
contemplation to break down the Federal judici-
ary altogether, and to subvert ancient foundations,
and as if the agents or perpetrators y (as the gen-
tleman from Connecticut has politely called them,)
with polluted hands intended to destroy that Con-
stitution they had sworn to support, and to leave
the community without a judiciary to enforce
obedience to the laws, whereby the strong might
give law to the weak, the rich oppress the poor,
and the artful and the wicked impose on the weak
and uninformed ', and all with impunity ; and in-
deed would induce a belief, that they alone had
either life, liberty or property to be protected.
But the fact is, that the old judiciary system, that
has answered every necessary purpose from the
commencement of the Government, remains in-
violate. It is the new system established at the
last period of the last session of Congress — a sys-
tem whereby sixteen new judges were introduced
as circuit judges, several of whom had been pro-
moted to be circuit judges from district judges, to
make room in the district courts for gentlemen of
Congress, who assisted to establish this new sys-
tem, and who therefore were by the Constitution
disqualified to accept that office, created during
the time for which they were elected to serve in
Congress, and, as he had said before, thereby in-
directly minted offices for themselves, and the
favorites of an expiring Administration — a meas-
ure resisted by the Republicans in both branches
of the National Legislature ; a measure which
was carried into operation by those from whom
the people have revoked their confidence, at the
moment their power was passing away, at a time
when the business in the Federal courts had de-
clined nearly one-half, and when the Sedition
law had ceased to be an engine to restrain the
liberties of the press, and to punish men for the
expression of their honest political opinions, was
all that was intended to be repealed.
Here let me call your attention to the letter of
the resolution, which, on reading it, will be fovnd
to extend no further than to the repeal of the act
of Congress of the last session, by which sixteen
new /^eeieroZ judges had been created, and a sys-
tem established at the annual expense of $1^.-
000. We are now called on, as the representa-
tives of the nation, as the organ of their legisla-
tive will, to determine whether this law, which
has been ever odious in the sight of the people,
and whose birth was not entirely legitimate, shall
be repealed. We are informed by the President
himself, that it is unnecessary, and that fact has
been established by the document submitted to us
on the subject of the judiciary courts of the Uni-
ted States. We are informed also, that on the
repeal of this law, and the making some retrench-
ments in the Naval and Military Establishments,
which have been already progressed in, is predi-
cated the repeal of the odious internal taxes ; and
in this manner, and to eflfect this desirable pur-
pose, this subject is brought before us. Can we
then hesitate to relieve our people frpm the burden
of their odious internal taxes, by the repeal of this
unnecessary law 1 I should presume not, if gov-
erned singly by the regard to the public welfare;
but we have, notwithstanding, been told by hon-
orable gentlemen, on the other side of the House,
that this law ou^bt not to be repealed :
1. Because it is inexpedient ;
2. Because, it is unconstitutional.
Upon the first point, that of its expediency, he
should not detain the Senate longer than to ob-
serve, that the document on our table shows, that
the old judiciary system, which had been coeval
with our Government, and had been in operation
from its commencement, had been at all times
sufficient for the transaction of all the judicial
business of the Union; that the business in the
courts had already declined nearly one-half under
the old system, even at the moment of the estab-
lishment of the new one ; also, that it was con-
templated to repeal the odious internal taxes — a
considerable source of litigation ; and that the
more odious Sedition law had expired, which
they all knew had been a source of considerable
litigation^ and he was sorry to add, had not placed
the judiciary above the reach of abuse ; but whe-
ther deservedly or not, he dared not affirm ; and
that the peace we had lately established. with
France had put an end to another source of liti-
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fflSTORY OF CONGRESS.
114
January, 1802.
Judiciary System,
Senatb.
gatioa, that of admiralty causes on the prize side
of the court of admiraUy. From this view of
the subject, he himself was entirely satisfied of
the expediency of the repeal, and had little doubt
that every gentleman was equally so, that any
evidence could convince.
As to the point of its being unconstitutional :
It will be recollected that the President himself
has recommended the repeal of this law y an evi-
dence of its constitutionality of so hi^h authority
with the enlightened people of America, that if it
stood singly on that, it would require a federal
host to shake it; but we know there are honorable '
gentlemen on this floor not disposed to confess their
respect for that authority on this occasion. Those
? gentlemen I will refer to the Constitution itself,
rom whence I presume it will appear that the
power now proposed to be exercised is clearly
delegated.
In the eighth section, ninth article, Congress shall
have power to constitute tribunals inferior to the
Supreme Court; in the seventh article. Congress
shall have power to establish post offices and post
roads. These are the precise expressions by which
Congress acquire the power over the subjects of
the inferior courts, and of the post offices ; there
is no other authority given them but by these ar-
ticles; there is no express authority to abolish
either courts or post offices, but the subjects are
respectively given to Congress to exercise their
legislative will upon, in such manner as should
best promote the public good. I would ask gen-
tlemen if Congress have not established post offi-
ces without number, and abolished them at their
will and pleasure, by virtue of their authority un-
der the seventh article above stated ; and I should
be glad to hear from whence the authority to
abolish post offices is derived, unless from the ar-
ticle that only expressly authorizes their establish-
ment, and whether the authority ffiven over the
subject has not in all past times oeen held suffi-
cient to justify the abolishing as well as estab-
lishment of post offices? He then called on the
gentlemen in the opposition to point out a differ-
ence between the powers of Congress over the
inferior courts and the post offices, and to show
how it was that Congress could abolish the p6st
offices under an authority to establish them, and
not to abolish the inferior courts under the like
authority to establish them ; and how the same
phraseology that is used in vesting the power in
Congress over the post offices and inferior courts,
can be tortured so as to authorize the abolishing
post offices, and not to authorize the abolishing
the inferior courts. But we have been told that
by the first section of the third article, this busi-
ness is to be explained; let us examine it: The
judicial power of the United States shall be vest-
ed in one Supreme Court, and in such inferior
courts as Congress may from time to time ordain
and establish. The judges of the supreme and
inferior courts shall hold their office during good
behaviour, fiy this it has been insisted, that the
judges of the inferior as well as the superior
courts hold their offices during good behaviour,
and that we have no power to pass this repealing
law because it would operate to dismiss the judges.
He said that Congress, by an extraordinary legis-
lative act, with the concurrence of two-thirds of
the States, had a power to abolish even the Su-
preme Court. He asked, in such case, what would
become of the judges ? Would they be entitled
to hold their offices as judges, when m the eye of
the Constitution there was no such office? No,
certainly ! The Constitution meant, and could
mean nothing else than a judge under the Con-
stitution, and the moment the Constitution dis-
continued the office the judge, under the Constitu-
tion ceased to have a political existence, and would
not be known to the Constitution as a jud^re. So,
he concluded, by an ordinary act oi'^ legislation,
the Congress might repeal the law erecting the
inferior courts, and on the repeal of the law from
whence the legal existence had been derived, con-
stituting them judges, he should be glad to hear
how they could be judges; that being created by
the law, they derived their existence from the
law, and could not as judges survive it; the Con-
stitution means a judge known to the law, and not
the man who had been a judge, after his political
dissolution. He insisted that Congress can estab-
lish legislatively a court, and thereby create a
judge; so they can legislatively abolish the court,
and eventually annihilate the officer ; that the in-
ferior courts are creatures of the Legislature, and
that the creature must always be in the power of
the creator; that he who createth can destroy.
But we are asked, by the honorable gentleman
from New York, in answer to this, " has a man .a
right to destroy nis own children?'' Mr. W. said
he had been taught to believe that man had not
been his own creator, but the happy instrument of
creation. But this power that is now denied to
us, had been exercised by the gentlemen them-
selves, in the very law that is now intended to be
repealed. You will see, by adverting to that law,
the district courts of Tennessee and Kentucky are
expressly abolished, and the office of a district
jud^e for the Slates of Tennessee and Kentucky
annihilated. But we are told by honorable sen-
tlemen that there was a circuit court established,
consisting of these two States and another State,
and that the judges of the district courts were ap-
pointed judges of the circuit courts, and accepted
their commissions as such, and therefore they say
that they did not destroy the office of the district
judges of Tennessee and Kentucky. He asked
if each other State had not district courts ; he
asked if there had not been circuit courts estab-
lished in all the States by that law, and if the
district courts of the other States had not been
continued; and can it be said that a district court
composed of a single State, as in the case of Ten-
nessee and Kentucky, is not abolished, and the
office of a district judge destroyed, because in the
same law a circuit court is established, and the
district judges appointed circuit judjp;es ? Can it
be said in fact that it is the same office, when the
duties are extended to three States, to sit in three
places, as it was when limited to one State and
one place ; or will gentlemen tell us that if the
judges of the district courts had refused to act as
115
HISTORY OF CONGRESS.
116
Senate.
Judiciary System,
January, 1802.
iadges of the circuit courts, whether they would
have beeo still judges of the district courts after
they had been abolished? Or will they say that
the commission of a district judge limitiug his
jurisdiction to a State is the same as that of a
circuit judge extending it over tliree States? And
whether the law authoriziug the commission over
three States ought not to precede the commission
vesting that authority ?
Mr. W. asked if Congress, when exercising
their authority in the first instance to establish
inferior courts, had not the right to limit their
continuance to any period, and that at the end of
that period, if the law was not continued, what
would be the situation of the judge appointed
under the law, would his authority continue?
Certainly not. And will any gentleman contend
on this floor, that if a former Congress had a risht
to give limitation to the continuance of a law that
the present Congress have not the same author-
ity to limit or to discontinue? Honorable gentle-
men, however ingenious, will find themselves, he
presumed, unable to solve these difficulties, or to
reconcile these inconsistencies ; for his part, the
authority by which this subject had been brought
before tnem, the recommendation of the Presi-
dent, had been powerful. The letter and spirit of
the Constitution, when recurred to, had established
him in that opinion, that they were justified in
the measure now proposed, and the practice of
Congress in abolishing the district courts of Ten-
nessee and Kentucky, satisfied him that it was no
new idea — no new exercise of power ; and fur-
ther, that nothing in the form of a Constitution
can be drawn so guardedly that gentlemen may
not be found to diner on its true construction, and
even, as in the present case, at different times and
on different occasions, differ themselves in the
construction of the same instrument. If aU these
considerations were not sufficient to satisfy gen-
tlemen, and we were obliged to recur to the prin-
ciples on which this instrument must have neen
established, we shall find that we do not in any
degree violate them by the construction we put
on them. If the British Government is recurred
to, from whence the State Governments borrowed
their principles, or if the State Constitutions are
resorted to, we shall find thoroughly incorporated
the principles for which we contend, that the
judges are mdependent only of the Executive, but
never above the law giving them their political
existence. He admitted, with the gentleman from
New York, that judges ought to be the guardians
of the Constitution, so far as questions were con-
stitutionally submitted to them ; but he held the
Legislative, Executive, and Judiciary, each sev-
erally the guardians of the Constitution, so far as
they were called on in their several departments
to act ; and he had not supposed the judges were
intended to decide questions not judicially sub-
mitted to them, or to lead the public mind in Legis-
lative or Executive questions ; and he confessed he
had greater confidence in the security of his lib'
erty in the tri|il by iury, which had in all times
been considered as tne palladium of liberty, than
in the decision of judges who had at some time
been corrupt. For his part, he did not wish to
break down the judiciary or the iudges, or to fIo-
late the Constitution, though he confessed he
should feel as secure in the decision of the State
judges in even federal questions, with an appeal
to tne Supreme Federal Court, as in the present
judges; and indeed the Constitution, in (he foarth
article, second section, which imposes on ail State
iudges the oath to observe the Constitution and
laws of the United States, always seemed to him
to consider the State courts in a certain degree
iudges of federal questions. Nor had be erer
been able to raise a doubt in his own mind as to
the propriety of trusting State judges to decide
federal questions, with an appeal to a federal court
when he considered that State juries had alwijs
been trusted to decide all questions, from whose
decision there was no appeal; and indeed the
State courts at all times had been the only judi-
cial guardians of our n^ts, whose integrity had
never been impeached. The^entleman from New
York is so careful of the Constitution, that he
wished it secured by walls of brass. Does he ap-
prehend others wish to violate it, and himself its
exclusive guardian, and that other gentlemen do
not hold themselves equally bound to protect it,
or have nothing worth protecting? For his part
he had sworn to support it, and never should ia-
tentionally violate it ; but he believed that no hu-
man invention could make it more secure thaait
was. deposited in that hallowed temple, and locked
by tne key of our holy religion.
Monday, January 18.
The Senate resumed the consideration of the
motion made on the 6th instant, that the act of
Congress passed on the 13th day of February, ISOL
entitled "An act to provide for the more convenieat
organization of the Courts of the United States,
ought to be repealed. And, on motion of Mr.
Dayton,
Orderedy That the further consideration there-
of be postponed until to-morrow.
The letter laid before the Senate on the 8th in-
tant, signed Thomas Tingey and others, the ves-
try of Washiufirton parish, was considered.
Resolved, That the Preisident of the Senate, for
the time being, be requested to make such order
respecting the said letter as he may think proper.
Tuesday, January 19.
A message from the House of Representatives
informed the Senate that the House insist on their
disagreement to the fourth, sixth, and seveiitn,
amendments of the Senate, to the bill concerning
the library for the use of both Houses of Congre^i
they agree to the conference desired by the Senate
on the subject-matter of the said amendments, anfl
have appointed managers on their part.
JUDICIARY BILL. .
The Senate resumed the consideration ot tne
motion made on the 6th instant, that the act ^i
Conffress passed on the 13th day of February, i W
entitled "An act to provide for the more conre-
117
HISTORY OF CONGRESS.
118
January, 1802.
Judiciary System,
Senate.
nient organization of the Courts of the United
States," ought to be repealed.
Mr. White, of Delaware. — I shall be believed,
sir, when I assure you, that nothing short of the
highest sense of duty, and the great responsibility
of the seat I have the honor to hold, could enable
me to overcome the extreme embarrassment I feel
in rising to present my sentiments to the Senate
on this the most important auestion ever before
them. I presume not to think, after the superior
eloquence and talents that have been here display-
ed, it will be in my power to cast on the subiect a
single additional ray of light. Already, sir, has it
been exhausted, and were I to consult my own
feelings only, I should not now have to trespass
upon vour patience, whilst in the execution of a
sacreo duty, I pass nastily over part of the same
ff round that has before been trod hy some of my
honorable friends, making such additional remarks
as might have escaped them. In the course of my
observations. I shall confine myself to the same
division of tne question pursued by the honorable
mover, and which it naturally presents.
1. As to the expediency. 2. As to the consti-
tutionality of the measure proposed in the reso-
lution.
That some system of courts is necessary in our
country for the execution of laws and the admin-
istration of justice, gentlemen most hostile to the
present establishment will readily admit. It is
acknowledged, too, on the other siae of the House,
that the expenses of the present judiciary are un-
worthy of your consideration ; that it is one of the
least evils attending it; but^ say gentlemen, it is
upon too large a scale, it is useless, it is dan-
gerous.
Sir, upon the original plan of the courts, it was
found impossible that the six presiding judges tra-
versing tnis extensive country, and holding their
sessions in every State, could either do justice to
the business, or at their advanced periods of life,
withstand the fatigue of such severe and constant
exercise; some alteration, some amendment of the
svstem was found indispensable ; the interest of
tne country demanded it of those in office, and it
is for the execution of this duty that their politi-
cal memories are now so illiberally reviled. It
is well known, sir, that the United States are in-
creasing in population, commerce, and wealth,
beyond any former example ; that new subjects of
litigation are every day finding their way into
your courts, and short-sighted indeed woula have
been the founders of the establishment now under
consideration had they confined their views to the
f ^resent time. Previous to the passing of this
aw, no man who could avoid it would commit
his business to' your courts, their arrangement
amounted almost to a denial of justice ; suitors
preferred taking their chance in the State courts
to the delay and expense attendant upon the pro-
ceedings in those or the United States. The con-
stant change of presiding judges at every suc-
ceeding court, total! V unacquainted with what
had been done by tneir predecessors, and intro-
ducing new rules of practice, together with the
unavoidable shortness of the terms, hung up the
business to the great inconvenience and injury of
many suitors, and roust in a short time have ren-
dered that system not only useless, but even a nuis-
ance to the country; people could not be expected
to apply for justice to a bench where time was
not given to administer it.
These, sir, among many others, are some of the
reasons why business had not been originated in
your courts antecedent to the present law. These
are the reasons, sir, why their dockets are now so
low ; and permit me say, that the extracts con-
tained in this document, even supposing them. cor-
rect, which happens to be far from the fact, prove
nothing ; they were taken at a time when the pres-
ent courts had scarcely commenced their opera-
tions, immediately after the first circuit, when no
gentleman will undertake to say, there had been
any thing like an opportunity at a fair experiment
of them. And now, sir, before the people of the
couDtry have even become acquainted with the
system, and before any man, unless by the power
of inspiration, can judge of its utility, it is in a
moment to be dashed to pieces. Why, I ask. sir,
this precipitance ? Do gentlemen fear that if the
measure is delayed until another session the ex-
periment might render the system popular ? And
these hateful judges — for there is the rub, sir — these
hateful judges will not be so safely got rid of. I
ho]>e gentlemen, at least for the present, will quiet
their fears ; they need not, I can assure them, ap-
prehend any immediate danger from this mighty
army of jucjicial veterans, so terrible in sound ;
they are now, I believe, sir, in Winter quarters,
ana even if continued in service another year,
could not totally ruin and enslave the country; or,
as has been indeed very feelingly expressed by the
honorable gentleman from Georgia^ on my right,
(Mr. Jaokson,) lay our virtuous citizens in irons.
The . honorable gentleman from the same State,
on my left, (Mr. BALnwiN,) has been pleased to
tell us, that the same justice was not to be ex-
pected from the courts of the United States, as
from those of the individual States, because the
judges of the former cannot have a sufficient
knowledge of the usages and customs of the
country, and tbeir jurors not being of the vicin-
age, can know nothing of the parties or their suits.
I admired much, sir, the ingenuity and candor of
that gentleman, but this was certainly among the
least solid parts of his argument ; unhappily the
very reasons he adduced, proved directly the op-
posite of what he wishea. Judges, sir, should be
governed only by the law of the land ; they carry
it with them ; they are its expositors, and are
sworn to decide according to it; and have nothing
to do with the usages and customs of the neigh-
borhoods where they may happen to sit. And
I have always understood that the greatest possi-
ble security for the impartiality of jurors is their
being entire strangers to the contending parties,
and totally ignorant of their causes, until empan-
nelled to decide them; they then view nothing
but the naked facts arising out of competent tes-
timony, and are influenced only by law and jus-
tice. And such, sir, is the frauty of our nature,
that the best man in society may be acting under
119
HISTORY OP CONGRESS.
120
Senate.
Judiciary System.
January, 1802.
the influence of politics, friendship, passion, or
prejudice, when he supposes himself governed by
the purest motives. Well aware though, as I am,
sir, that nothing short of the Constitution itself,
and I fear that not even that will be sufficient to
preserve the independence of the judiciary from
this bold onset, I shall now proceed to the second
division of the question.
I admit, sir, that the law proposed in the reso^
lution to be repealed, is capaole of much amend-
ment, and it has never been denied but that Con-
gress had the power of altering it in any way, so
as not to impair the independence of the judiciary,
by touching the offices or s^alaries of the judges;
this cannot be done, the words of the Constitution
on the subject are as explicit and certain as lan-
guage can be. By the nrst section of the third
article it is declared, that ^' the judicial power of
' the United States shall be vested in one Supreme
' Court, and in such inferior courts as the Con-
' gress may, from time to time, ordain and estab-
* fish. The judges, both of the supreme and infe-
' rior courts, shall hold their offices during good
' behaviour.'' Does our lan^uage^adroit otwords
more positive than these, sir? Not a letter, nor
even a comma, is wanting to complete the mean-
ing we assign to them ; and I ask gentlemen to
point out any other words that the framers of this
instrument could have used, that would have been
less equivocal, or that could import with more
certainty the construction we now contend for ;
it has not yet been done, and I defy them to do it;
and if a different construction can be given to
these words, this written Constitution is not worth
a sous ; it is to all useful purposes a mere carte-
blanch upon which a Legislative majority may
write what they please.
In a preceding part of this Constitution, power
is given to Congress to constitute tribunals infe-
rior to the Supreme Court ; by the act to which
the resolution on your table refers^ they did so, and
in pursuance of that act, the President of the tlni-
ted States issued commissions to certain gentle-
men as judges, they accepted of those commis-
sions, and at the moment of their becoming judges,
the Constitution attached to their offices, and
guaranteed to them, the same independence and
permanency as judges of the Supreme Court, for
It makes no distinction. " Judges both of the su-
' preme and inferior courts shall hold their offices
^ during good behaviour." On the acceptance of
their commissions, a complete contract was formed
between them and the Government ; the Consti-
tution told them that the tenure af their offices
should be their own good behaviour ; the law told
them that, for their services, they should receive
a certain sum annually ; these were the terms, sir,
that tempted them to leave their other pursuits in
life, and carry into execution this contract ; and it
is a contract that no power on earth can dissolve
but by first altering this Constitution in the man-
n«v it directs, or by violating it ; and any law at-
tempting its dissolution, operates retrospectively,
is an er post fcLCto law, and in that respect, too,
unconstitutional.
But, sir, in order to place beyond a question
forever the entire independence of the judiciary,
the Convention went still further, and in this same
section, nay, in this same sentence, for they fol-
lowed the thin^ closely up, they declared that
these judges, viz., of tne supreme and inferior
courts *^ shall, at stated times, receive for their ser-
^ vices a compensation whicn shall not be dimin-
^ ished during their conttbuance in office." And
under the words of this Constitution, we have just
the same power to diminish their salaries whilst
they continue in office, as we have to remove
them from their offices and strip them of all salary;
they hold their offices during good behaviour, and
the full amount of their salaries whilst in office
by the same strength and power of laneua^ ; for
can it be said, sir, that the words "shall not" are
more prohibitory than the word "shall" is man-
datory ? Certainly not. These latter words ap-
ply especially to Congress ; they must have been
introduced for the express purpose of fixing and
marking the bounds of Legislative authority to-
wards the judiciary. And it would seem as if the
wise framers of this instrument had feared not, sir,
that Congress would ever presume themselves a u-
thorized absolutely to remove any judges from their
offices without cause, as is contemplated in that
resolution, for such an idea could never have en-
tered their minds, after they had the moment be-
fore expressly declared, in so many words, that
the judges, both of the supreme and inferior courts,
should hold their offices during good behaviour,
but that the aspiring pride and ambition of Legis-
lative power, in some unhappy moment of intem-
perance or party warmth, might attempt to im-
pair the independence of tne judiciary in another
way, by assuming a discretionary power over the
salaries of the judges, and thus, tendering them
dependent upon Legislative pleasure for a preca-
rious support, make them servile and corrupt.
Gentlemen acknowledge that the judges of the
Supreme Court are out of their reach, (thank
Heaven that they happen to think so, or they, too,
would accompany their brethren ;) but, say they,
the judges of the inferior courts are creatures of
our own, and we can do with them as we please.
Let nie admit, sir, for argument sake, the positive
meaning of the Constitution to the contrary not-
withstanding, that these words, " the judges, both
of the supreme and inferior courts, shall hold their
offices during good behaviour." are equivocal.
What reasons can gentlemen have to believe,
upon what possible grounds can they presume,
that the makers of this Constitution did not in-
tend to place the judges of the inferior courts
upon the same independent footing as those of
the superior courts 1 Do they not belong to the
same great department of your Government ; in-
tended to be kept separate and distinct from the
other two great departments? Is not their inde-
pendence equally important to the faithful ad-
ministration of justice? Certainly, sir, and impos-
sible more so, for it is to them the people, in most
instances, must first apply for justice, and a vast
proportion of the most important business that
passes through their hands, is never carried into
the Supreme Court.
121
HISTORY OF CONGRESS.
122
January, 1802.
Judiciary System.
Senate.
As to the outcry that has been raised about six-
teen hundred, or sixteen thousand, or sixteen mil-
lions of judges, if gentlemen please — calculating
on the abuse of power by the constituted authori-
ties in the use of it, the honorable gentleman from
Connecticut has so fully and unanswerably re-
plied to it, that I shall make no observations on
the subject.
The gentleman from Greorgia, on my right, has
told us that the ConstitutioD cannot be altered in
any other way than by two-thirds of Congress
agreeing to it. and then very emphatically asked,
-^ill two'thiras now agree? i hope not, sir; but
because a sufficient number of us cannot agree
upon altering it Constitutionally, will ^ntlemen
foroe their way through it by violence, in order to
get at these judges ? The same honorable gen-
tleman has been pleased to compare this system
and these judges to a cotton machine ; when done,
if it should not work to suit the maker, he tears
it all to pieces and makes a new one. Are we at
liberty to infer from this, sir, that the present
judges connot be made to work to suit the present
rulers, and that this system is to be demolished to
displace them, in order to make a new one, and
seat upon your benches of justice creatures more
pliable 7 1 hope not, sir ; I am sure such cannot
be the views of any honorable gentleman.
It has been day after day echoed and re-echoed
from one side of the Chamber to the other, that
this law was one of the last expiring acts of the
former Administration ; that the LegisFature had
no riffbt to pass it, because they knew it would be
repealed. What, sir. are we told that a majority
ofthe last Congress nad no right to pass a Consti-
tutional law? This is novel doctrine, indeed;
and were they to omit doing good because they
had reason to believe their successors would do
evil ? I acknowledge, sir, that the establishment
of this Judiciary syrstem was one of the last acts
ofthe former Administration, and it was the very
best act ; the destruction of it is likely to be #ne
of the first acts of the present Administration, and
I pray God that it may be the worst ; but from
such a beginning the end is indeed incalculable.
Sirj these judges may, by the strong arm of le-
gislative power, be driven from their seats; not
their own unimpeachable integrity, their virtue,
and their learning, or even the sacred barriers or
the Constitution itself may be sufficient to avert
their fate; but remember, though advanced in
years, many of them will live to see what the gen-
tleman from Maryland has called the efflux of
passion and reflux of reason — they will live to see
the people of this country review with horror the
present attempt ; and, if till then they should hap-
pily preserve their peace and liberties, wonder
now It has happened.
I will now, sir, in conclusion, notice, in a style
that it deserves, the language of the gentleman
froni VirgiDia, in the discussion of this question,
applied to the State of Delaware — language un-
worthy of this floor. He tortured an expression
of my honorable friend from New York to furnish
himself with an opportunity of travelling far out
of the subject, in order to insult the honor of the
State I belong to. After speaking of the suability
of States,' he observed that he should feel the same
' interest for any State, large or small, whether it
* were the little State of Delaware herself or the
' still more insignificant Republic of St. Marino."
The speech is not yet in print, but if I am wrong
the gentleman will correct me. [Mr. Mason ex-
plained : he did not mean by what he said any-
thing derogatory to the State of Delaware ; on tne
contrary, he entertained a high respect for that
State.] Mr. White. — I hope, Mr. President, I
may be further indulged ; I did not at the moment
distinctl]r hear what the gentleman said, but now
must insist on knowing explicitly from him, not
only what he meant, but whether be believes the
word ^' insignificant," as used by him, could in any
way apply to the State of Delaware ? [Nf r. Ma-
son was about to explain further, when the Vice
President rose from his seat and observed, that
he was not in the Senate when the gentleman
from Virginia spoke, but if he had used any such
words as were charged to him, they were imm-op-
er, and ought not to have been permitted. That
no reflections on any State or gentleman should
be suffered in the Senate, and he hoped the gen-
tleman from Delaware would take no further no-
tice of it.] Mr. White. — As the gentleman is
now pleased to deny his intention, in obedience to
the Chair, I shall spare myself the trouble and his
feelings the pain of a retort that very readily pre-
sents itself.
Mr. Chipman, of Vermont. — Mr. President, af-
ter the length of time which has already been
consumed, and the abilities which have been dis-
played in this debate, I can have but little hope
of exhibiting anything new for the consideration^
of the Senate, i et, momentous as I consider the
decision to be made on the present question, in-
volving consequences powerfully affecting the
most important principles of the Constitution, I
cannot persuade myself to give a merely silent
vote on the occasion. In the observations which
I intend to make, I shall endeavor, briefly, to ex-
amine some of the principal arguments only,
which have been oflered in favor of the resolution
on your table.
The arguments in support of the resolution have
been reduced under two general heads :
1. The expediency of repealing the law con-
templated in the resolution, and
2. The Constitutional power of Congress to re-
peal that law.
To evince the expediency of the measure, it has
been said that the svstem of 1793 was adequate to
all the purposes of*^ the National Judiciary ; and
that the juoges appointed under that system were
competent to all the Judicial duties required.
Upon this, sir, I shall briefly observe, that from the
number or terms of the supreme and circuit courts,
and the immense distance to be travelled, the la-
bor was unreasonably great. From the labors
and fati^es of riding the circuit, there could
not be allowed time sufficient for those studies,
and for that calm and deliberate attention which
is to necessary to a proper discharge of the duties
of a judge.
123
HISTORY OF CONGRESS.
124
Senate.
Judiciary System,
Jandart, 1802.
At times, it has happened that a supreme judge
could not attend a circuit court ; from this cir-
cumstance, the court in the district to which I
have the honor to belong, has more than once fail-
ed to be holden. At other times, the arrival of
the judges has been so late that the proper busi-
ness of the term could not be completed. These
failures occasioned very great delav, expense, and
vexation to the suitors ; and we know that the
same or greater failures and delays have unhap-
pily been experienced in other parts of the United
States — failures and delays which I cannot attri-
bute to any criminal negligence of the judges, but
to the burdensome duties imposed by that svstem«
and the infirmities and accidents to whicn men
must ever be exposed, in the performance of labors
so arduous and extensive.
To prove that judges of the Supreme Court
must have been competent to all the duties of that
and the circuit courts, the honorable gentleman
who brought forward the resolution drew a com-
parison from the courts and iudges in England.
He has told us that in England there are but
twelve judges and three principal courts; that these
courts embrace, in their original or appellate ju-
risdiction almost the whole circle of human con-
cerns ; that the two courts of King's Bench and
Common Pleas, consisting each of four judges,
entertain all the common law suits of forty shil-
lings and upwards, arising among nine millions of
the most commercial people in the world; and
that they have, moreover, the revision of the pro-
ceedings of the subordinate courts in the King-
dom, down to the courts of pie-poudre ; and that
from long experience these courts have been found
fully competent to all the business of the King-
dom. This statement, sir, is by no means cor-
rect. In England, the House of Lords is the su-
preme court of appeals in the last resort, in causes
[>oth in law and in equity. Instead of tnree, there
are four superior courts. The court of Chancery,
in which are decided all suits and matters in equi-
ty, including a very numerous and important class
of causes. The courts of King's Bench, Common
Pleas, and Exchequer, all of which have original
jurisdiction in civil causes ; and the King's Bench,
besides being the highest court of criminal juris-
diction, has also the correction and revision of the
proceedings of all the subordinate courts, by writ
of error or otherwise. The subordinate courts,
which were barely mentioned, are very numerous.
There are in England, exclusive of Wales^ more
than forty counties, all of which have their sep-
arate courts end judges. Some of the counties
are regular franchises. Lancaster, Chester, and
Durham, have their separate courts, both of law
and equity, which claim cognizance of causes and
parties witnin their respective jurisdictions, even
against the courts at Westminster. There are also
an immense number of cities and towns corporate
throughout the Eangdom ; the courts and judges,
of which, though more or less limited in their ju-
risdiction, entertain a vast variety of civil suits.
There are, besides these, the hi^h court of admi-
ralty, which has an exclusive jurisdiction in ma-
ritime causes ; the courts of the two universities,
the prerogative court of the Archbishop of Can-
terbury, the archiepiscopal court of York, the di-
ocesan and other ecclesiastical courts, having also
an extensive jurisdiction, of a civil nature, in
causes testamentary, and tnose relating to the dis-
tribution of the ^oods of intestates.
Wales is a principality, and its courts have ex-
clusive original jurisdiction within the territory.
The great sessions is the highest court of the prin-
cipality from which a writ of error lies in the Court
of King's Bench. The subordinate courts and
judges are equally numerous, in proportion to the
territory and inhabitants, with that of England. I
omit the courts of conscience and other inferior
courts, and magistrates almost without numba.
From this view, though imperfect, it is evident
that the comparison attempted by the honorable
gentleman, is by no means favorable to his con-
clusion. The population of that country exceeds
in number that ot the United States by one third,
perhaps more; but its whole extent, inclusive of
Wales, though not comprehended in the Ntti Prius
circuits, does not equal one of the circuits of the
United States, under the system of 1793 ; and yet
that country employs, it is believed, more courts
and judges, not only than the Government of the
United States, but than all the individual States
taken in addition. I do not however conceive that
any advantage is to bederivedfrom the comparison,
to the one side or the other. The situation of prop-
erty and civil policy, numerous and complicated
rignt<(, introduced by ancient usages, and supported
by laws and habits, and by interests public and
private,may render a greater number of^courts and
judges,a more extensive judicial system, necessary
m one country than in another : I think it ought
to be laid wholly out of the question.
It has been said, sir, that a knowledge of the local
laws, of the customs and manners of the several
States, is necessary to the judges of the Supreme
Courts, and cannot be dispensed with on appeals
in pauses arising in different parts of the Union,
and that the judges can acquire this knowledge ia
no way but by attending the circuit courts in the
several States. But let me observe, sir, that the
laws of the several States, which vary from the
common law, are to be found in their statute books,
in the decisions of their courts and their rules, of
practice ; for no custom can as such become a law.
until it shall have been adopted by usages and es-
tablished by judicial decisions. All these may be
made to appear on an appeal, either on the face of
the records in the pleadm^fs, or in the special ver-
dict, or by proper exemplification, and will afford
the court in such case a more correct knowledge
than the recollection of a judge, of what he has
caught in the hurry and fatigue of the circuit.
A further objection has been urged against the
continuance of the present judicial system, from
the additional'uumber of judges which it has in-
troduced, which it is said may prove dangerous to
the liberties of the country. An honorable gentle-
man from Georgia (Mr. Jackson) cited the opin-
ion of an author who has written on the British
constitution, that the greatest political evil which
could befall the country, was the existence of large
125
HISTORY OF CONGRESS.
126
January, 1802.
Judiciary Systenu
Senatb.
judiciary bodies, and who had illustrated his ideas
on that subject by instancing the Parliaments of
France. This observation does not, neither was
it meant by the author, to apply to any particular
number of courts in due subordination, each con-
sisting of a small and limited number of judges
and employed solely in proper judicial business.
But it applies with force to courts composed of nu-
merous members and forming large bodies, who,
in addition to their proper judicial functions, are
permitted to assume an authority in the political
concerns of the nation. Such were the Parliaments
of France, the late judicial courts of that country ;
particularly the Parliamentof Paris. The members
of this body were verr numerous, and as it was
necessarv that all royal edicts, before they were to
be considered as laws, should he registered in that
court, they claimed the right of deliberating and
deciding on the registration of any edict ofiered by
royal authority, and consequently of permitting or
refusing it the sanction of a law. With this claim
that body certainly became dangerous to the exist*
ing Government and the contest which ensued be-
tween them and the King on this subject, had no
doubt a powerful effect in precipitating the late
revolution in that country. But there is nothing
in all this which can be applied to the courts of
the United States. Let me observe, sir, that there
has always appeared to me, in the system of 1793,
which is sought to be restored, a very great and
manifest impropriety. The circuit courts were in
that system, though subordinate, in some measure
blended with the Supreme Court, one or more of
the judges of the Supreme Court being alwavs
judges of the circuit courts. This rendered tne
Supreme Court a fluctuating body, some of the
judges of the Supreme Qourt being always exclu-
ded in the decision of causes coming by appeal from
the d ifferent parts of the United States. And when
two supreme judges held the circuit courts of the
four remaining judges, who were to decide on an
appeal, three might reverse ajudgmentafipinst the
opinion Of the ^urth, and the opinion of the two
judges m the circuit court, unless those judges,
from whose judgment the appeal was made, gave
also their opinions in favor of an ajQirmance, and
which they might do, their exclusion being indeed
only voluntary, from a*high and just sense of pro-
priety. This nas always appeared to me, to say
no more, a very glaring impropriety in that system.
The circuit courts under tnat system have indeed
been compared to the Nisi Priua courts in Eng-
land, but the slightest attention will convince any
one that they do not compare. The circuit courts
in our system are courts of original and distinct
jurisdiction ; not so the courts of Niai Prius in
England ; they are considered as a branch of the
superior courts, at Westminster, and are held by
a commission of assize usually issued to a judee
of one of the superior courts, and an associate tor
each of the six circuits into which England is for
that purpose divided. When a cause in any of
the superior courts is by the pleadings put on an
issue of fact, it is with the record sent to be tried
at Nisi Pritis, by a jury of the proper county ; in-
stead of calling up a jury to try it at the oar in
Westminster Hall. After the trial at Nisi Prius,
the verdict with the record is remitted to the court,
out of which it was sent, and there the opinion of
the Nisi Priiis judge and the conduct of the jury
are examined, and considered as matters passing
in the same court. Here then the comparison
wholly fails: there is no similarity between the two
systems, except that of a judge riding the circuit.
Here, sir, I shall waive any further observations
on this part of the subject, and come to the great
question which it is necessary to decide. Have
Congress the Constitutional power to repeal the
law as contemplated by the honorable mover of
this resolution ? To abolish the courts established
by that law, put down the judses, and abolish their
salaries? It is true, as was observed by the hon-
orable gentleman from Gkorgia, (Mr. Baldwin)
that the resolution does not necessarily involve that
question, because the repealing act, if the resolution
siiould be adopted, may be so modified as to avoid
any difficulty on tne great point. But as the hon-
orable mover avowed his intention to be an aboli-
tion of the courts, the offices of the judges and
their salaries, and as the principal arguments have
in the course of this debate been directed by' that
view of this subject, I shall be permitted to con-
sider it on that sround.
One source of argument in favor of the measure
proposed, has been derived from the powers con-
sidered as incident to every legislative body. It
is said that a power to repeal all its legislative acts
is inseparably incident to every sovereign Legisla-
ture— that the act, the repeal of which is contem-
plated, is a legislative act of Congress, therefore
Congress necessarily have the power to repeal it —
that to admit the contrary, is to say that the po^-
er of Congress at one time is not equal to its pow-
er at another time — that a subsequent may be
bound by the acts of a former Congress, contrary
to a very important maxim in legislation — in a
word, that it is to make the creature greater than
the creator, as it denies to Congress the power over
its own acts, which it has passed, and will in course
put a stop to all amendments, ail improvements of
our laws. This doctrine, here meant to be assert-
ed, is not in the full extent applicable to the legis-
lative powers under our Constitution. There are
acts which Consress are by that instrument ex-
pressly denied the power of jpassing — there are
acts which, whenever passed. Congress cannot re-
peal, or rather the effects ol which they cannot
even suspend, much less can they destroy. They
are expressly denied the power of passing ex post
Jacto laws ; and this applies no less forcibly to a
repealing act than to any other act — it is hy its
operation that the nature of the act is in this case
determined. Every act which in its operation at-
tempts to divest any right previously acquired,
whether by a former act of legislation, or by any
other lawful means of acquisition, is in name, na-
ture, and essence, ex post facto.
Indeed, sir, I apprehend that some gentlemen
have been led into a mistake on this subject, by
an incautious admission of maxims and theories of
legislative powers in another Government; but
which do not apply to our Government, as insti-
127
Senate.
HISTORY OF CONGRESS.
128
Judiciary System,
Jandarv, 1802.
tatedand limited by our Constitution. There are,
sir, in every nation two kinds of legislative pow-
ers. The one is original and extraordinary ; and
may be called the power of political legislation.
It is by an associating nation employed in forming
and organizing the Government^ in disposing its
powers and defining or limiting their exercise.
The other is derivative, the ordinary power of le-
gislation, and is employed in the civil regulations
of the community. In the first consists the politi-
cal sovereignty of the nation. This power is
transcendent. It is paramount to all other powers
in the nation. It can create powers, rights, and
duties, and can abolish them at pleasure ; not be-
cause what it does, is always wise or even just ;
but because no other power in the nation can have
a right, or can be equal to control its operations.
In Sreat Britain, from ancient usage, the consent
of the nation witnessed, by long and general ac-
quiescence, both the ordinary and extraordinary
powers of legislation are considered to be vested
m the Parliament of the nation. Acting in this
capacity of political sovereign of the nation, the
British Parliament can create rights, and' can
destroy existing rights, at will ; although in exer-
cising such acts ofpower, they proceed with great
caution, and are careful to indemnify individuals,
whose rights they may have injured. In this ca-
pacity it can, as it has done, new-model the Gov-
ernment. It can fix and alter the duration of Par-
liaments, and change and limit the descent of the
Crown. Indeed, vested with this power, in addi-
tion to the ordinary powers of legislation, the
figure is hardly too bold, by which, when acting
on subjects within the reach of its authority, it is
said to be omnipotent. Not so the Congress of the
United States ; they possess not that transcendent
power, that uncontrollable sovereignty of the na-
tion ; they possess the ordinary powers only of le-
gislation ; and these powers they derive under the
Constitution of the United States : by this instru-
ment their powers are instituted, limited and de-
fined. This instrument is the act of the political
sovereign, the People of the United States. To
them it was proposed, and they, through their agents
empowered for that purpose, enacted it the funda-
mental and supreme law of the National Govern-
ment. They have said, as they had a right to
say on this subject. Congress shall act ; or that
they may act at their discretion ; here the Con-
gressional power is limited, there is placed a bar-
rier which shall not be passed. Congress, as I ob-
served, possess not this paramount power ; but in
one mode, provided for altering and amending the
Constitution, they are, under certain restrictions,
permitted an inceptive power. They have a right
to originate proposals ofamendments, which, when
ratified by three^fourths of the State Legislatures,
to whom the national sovereignty is in this in-
stance referred, are adopted into, and become a part
of that instrument. In another mode, the State Le-
gislatures have the power of inception ; they also
may originate proposals of amendments, which
Conffress must refer to a convention of the people
for their ultimate acceptance and ratification. In
this instance alone, have the people of this coun-
try reserved to themselves a portion of the national
sovereignty, in the exercise of which is only found
that voice of the people, which, because it is not
to be resisted, is sometimes called the voice of
God. This, sir, is the authority of that supreme
law under which we act, the Constitution of the
United States; an authority indispensably bind-
ing. We have no right^ when we wish to carry a
favorite measure, to which we find some barrier
opposed by the Constitution, to prostrate or to
overleap tnat barrier. We nave no right to say
that the national soverei^, could it now be con-
sulted, would dispense with the limitation, would
remove the barrier, which, in our present opinion,
stands opposed to the public good. No, sir, we
may not approach this ground. It is dang^erous ;
it is an usurpation of the national sovereignty.
We are but aj^ents of the nation, acting under a
limited authority. All our acts which exceed that
authority are void.
These are the principles to be applied in the in-
vestigation of Constitutional powers. Let us then
examine the Constitution upon these principles,
and fairly determine whether we are permitted the
power for which it has been contended, the Con-
stitutional power to remove a judge, by abolishing
the office, and consequently to deprive him of his
salary ? The first provision whicn we find in the
Constitution relating to the judicial department,
is in the second section, where, among other pow-
ers enumerated, it is declared that Congress shall
have power "to establish tribunals inferior to the
Supreme Court." Upon this it was observed, by
the honorable gentleman from Gkorgia, (Mr. Jack-
son,) that this being a s^rant to Congress of a le-
gislative power to establish inferior courts, neets^
sarily includes the incidental power to repeal; that
this being a first grant, cannot be restrained nor
taken away by any subsequent provision in the
Constitution upon the same subject ; that we are
to take the rule of construction, that the first grant
and the first word- of a grantor in a deed, shall
prevail over a subsequent grant, or subsequent
words of a diiferent import. Are we, indeed, sir,
to apply in the construction of the Constitution,
the law, the supreme law of the nation, the rules
devised for the construction of a deed, a grant, by
which a few paltry acres are transferred from one
individual to another? No, sir, very different are
the rules of construction ; the first act of the grantor,
but the last act of the Legislature, shall prevail ;
or where, in any case, is the power to repeal 7
Another rule, more universally applicable, is, that
you shall so construe a law that evejry part of it,
if possible, may stand toj^ether, that every part
may have its o{)eration. Thus, if there be a gen-
eral provision in the former part of a law, and
there follow a particular provision, which cannot
take effect unless some part of the former provi-
sion be set aside, the latter shall be considered as
a limitation of the former, and which shall be car-
ried into effect so far only as it is not incompat-
ible with the latter.
In the third section of the Constitution is a
further provision: "That the judicial power of
^ the United States shall be vested in one Supreme
129
HISTORY OF CONGRESS.
130
January. 1802.
Judiciary System,
Senate.
*■ Court, and in such inferior courts as the Con-
' gress may. from time to time, ordain and ap-
' point." The highest judicial authority shall not
be divided into two courts. It shall, to use a ruder
phrase, be one and indivisible. I consider it as
imperative on Congress to establish, not only a
Supreme Court, but also to establish some courts
of inferior jurisdiction, which may be modified
and extended from time to time, as experience and
future expedience shall dictate, so that it be with-
out violence to any part of the Constitution. The
words, *' as Congress may, from time to time, or-
dain and appoint," were introduced with intent so
far to give a discretion on the subject. The power
of erecting courts, is here taken for granted, as is
contained in the clause before cited, from the sec-
ond section, supplied by the general clause, by
which it is declared, that ^ Congress shall have
' power to make all laws which shall be neces-
* sary and proper for carrying into effect all the
*^ powers vested by the Constitution in the 6ov-
' ernment of the United States, or in any officer,
' or department of the Government." I cannot
understand it; for how is it possible so to under-
stand it, that the words, " may ordain and ap-
point," in their connexion imply also to abolish ?
Certainly it is not a necessary implication. That
Congress are required to make a provision of in-
ferior courts ; that the thing is not merely optional,
is very clear from another part of this section, de-
claring to what class the judicial authority of the
United States shall be extended. [Read that part
of the section.] Here observe, the Supreme Court
has ori^nal jurisdiction in the smaller number
only of the cases specified ; &o that without a pro-
vision of inferior courts there would be no provis-
ion for the greater number, and the judicial au-
thority, instead of being extended to all the cases
enumerated, would in fact be limited to a few
only.- Let us now examine the provision rela-
ting to the judges, which is contained in the for-
mer part of this section — a provision intended to
secure to the judges a proper degree of independ-
ence. It is declared, that ^^ the judges both of the
^ Supreme Court and inferior courts, shall hold
* their offices during good behaviour." The judges
of all the courts are placed on the same footinjB^.
The expression is not, that they shall continue in
office, which might seem to be compulsory, but
shall hold their offices, implying at their option,
during good behaviour. For a judffe may resign ;
he may accept a place incompatible with the of-
fice of judge, as he may, on election, accept the
Elace of Senator or Representative in Congress,
y which his office of judge would be vacated by
his own act implying a resignation. The force
of the expression clearljr is, that no judge, either
of the supreme or inferior courts, so long as he
continues to behave well, can be removed from
the office, or the office removed from him by the
act of any other. For the expression being gen-
eral, with only one exception, in the nature of a
proviso, that he continues to behave well, it is ex-
clusive of every power either to remove the judge
from the office, or, as has been ingeniously indeed
suggested, of removing the office from the judge,
7th Con.— 5
causing it to vanish from its hold on any other
ground or pretence whatever. It is a well-known
rule, that the expression of an exception in any
provision, excludes every other exception by im-
plication. Next it follows, " and shall (the judges
shall) at stated times receive for their services a
^ compensation, which shall not be diminished du-
^ ring their continuance in office." How long shall
they continue to receive, or be entitled to receive,
an undiminished compensation or salary? So
long as they shall continue to hold their respect-
ive offices. And how long are they entitled to
hold their offices ? So long as they snail continue
to behave well. That is, the duration of the time
for which they shall be entitled to receive an un-
diminished salary, shall be equal to the duration
of the time for which they are entitled to hold
their offices, equal to the duration of the time in
which they shall continue to behave well. What
rarely happens in subjects of this nature, the posi-
tion that the judges cannot, duriUj^ food behavi-
our, without a direct violation of the Conssitu-
tion, be deprived of holding their offices, or of re-
ceiving their salaries, is capable of the highest
proof, not merely by a train of probable and met-
aphysical reasoning, but by the clearest and plain-
est mathematical demonstration. It is a compar-
ison of quantities in the duration of time; or
shall it now for the first time be said, that when
one quantity, or one length of duration is equal to
a second, and the second to a third, that neverthe-
less they are not equal each to the other ? Have
intuitive truths at length changed their nature?
Are they in these times inverted to falsehoods?
Have the clearest axioms of ancient science suf-
fered a revolutionary subversion ? No, sir, they
remain the same ; they are still capable of assist-
ing us to the same infallible conclusions.
The gentleman from Kentucky has told us, that
if the construction against which he contended had
been contemplated by the framers of the Constitu-
tion, it would have been explicitly declared, that the
judges shall hold their offices and salaries during
good behaviour ; fairly admitting, that a declara-
tion thus explicit, would have been conclusive for
the construction of his opponent. Surely it will
not be contended, that the idiom of the English
language is so inflexible, and its interpretation so
precise, that identical positions to be equally clear
and explicit, can be expressed by identical words
and phrases only. Had the expression been, they
should hold their offices and receive their salaries
during good behaviour, would not the meaning
have been the same and equally expressive ? In-
deed the word hold, though well applied to an
office, is not very properly applied to taking the
payment of a salary. Or naa it been, '^ they shall
'hold their office during good behaviour, and
* while they continue in office, which is to be du-
' ring good behaviour, they snail continue to re-
* ceive their salaries, which shall not during that
^ time be diminished," it certainly would have
been a declaration equally explicit with that sug-
gested by the gentleman. And this it has been
clearly and demonstrably proved, is the same as
that which is expressed in the Constitution.
131
HISTORY OF CONGRESS.
132
Senate.
Judiciary System.
January, 1802.
I will here, sir, though it might perhaps have
been more properly done before, make a few ob-
servations on the independence of the judiciary.
It has been said by some gentlemen, in effect, that
though the judges ous^ht to be independent of the
Executive — though they ought not to hold their
offices or salaries dependent on the will of the
President, yet, in a Uovernment like ours, there
can be no reason why they should not. like the
other departments of the Government, be depend-
ent on public opinion, and on Congress, as prop-
erly representing; that opinion. That if t^e judges
are made thus independent; if Congress cannot
remove them by abolishing their offices, or in any
other way, except that of impeachment for mis-
behaviour, they will become a dangerous body in
the State ; they may, by their discussions on the
constitutionality of a law. obstruct the most im-
portant measures of Government for the public
good.
Unfortunately for the argument, this doctrine
agrees neither with the nature of our Govern-
ment, which is not vested with the unlimited na-
tional sovereignty, but from that derives its pow-
ers, nor with the positive 'and solemn declaration
of the Constitution. That Constitution is a s)rs-
tem of powers, limitations. and checks. The Legis-
lative* power is there limited, with even more
guarded caution than the Executive ; because not
capable of a check by impeachment, and because
it was apprehended, that left unlimited and uncon-
trolled, It might be extended to dangerous en-
croachments on the remaining State powers. But
to what purpose are the powers of Congress lim-
ited by that instrument? To what purpose is it
declared to be the supreme law of the land, and
as such, binding on the courts of the United
States, and of the several States, if it may not be
applied to the derivative laws to test their consti-
tutionality ? Shall it be only called in to enforce
obedience to the laws of Congress, in opposition
to the acts of the several States, and even to their
rightful powers ! Such cannot have been the in-
tention. But, sir. it will be in vain long to ex-
pect from the judges, the firmness and integrity
to oppose a Constitutional decision to a law, either
of the national Legislature, or to a law of any of
the powerful States, unless it should interfere with
a law of Congress ; if such a decision is to be
made at the risk of office and sa.lary, of public
character, and the means of subsistence. And
such will be the situation of your judges, if Con-
gress can, by law, or in any other way. except by
way of Impeachment, deprive them of their offi-
ces and salaries on any pretence whatever. For
it will be remembered, that the legislative powers
of the several States, as well as those of Congress,
are limited by the Constitution. For instance,
they are prohibited, as well as Congress, to pass
atly bill of attainder or ea: post facto law. The
decisions of the judges upon sucli laws, and such
decisions they have already been called upon to
make, may raise against them, even in Congress,
the influence of the most powerful States in the
Union. In such a situation of the judges, the
Constitutional limitation on the Legislative pow-
ers, can be but a dead letter. Better would it be
they were even expunged.
Thus, sir, it appears, that the independence of
the judges, even of Congress in their Legislative
capacity, is agreeable to the nature of our Gov-
ernment, to the whole tenor as well as the express
letter of the Constitution. But, sir, at thi.s late
stage of the debate I will not farther enlarge ; I
will only add, that upon these principles, and with
these views of the subject, I shall sive a hearty
negative to the resolution on your table.
Mr. Wells, of Delaware. — I know not what
apology I shall make for rising at this late period
of the debate, unless I find it in the importance of
the subject under discussion. Comine, as I da
from one of the smaller States, all of whom, from
their peculiar situation, feel perhaps more than a
common interest with their sister States in the
preservation of this Constitution, I could not be
indifferent to the progress of the present question.
To a State circumstanced like that to 'which I
have the honor to belong, the Constitutiou of the
United States is the charter of her rights and the
palladium of her liberties. I must, therefore, be
forever induced by sentiments of attachment as
well as duty to resist a measure calculated to sub-
vert that Constitution. Such, I believe, is the ten-
dency of the resolution on your table. When 1
say so, I do not mean to impute any unworthy
motive to the gentleman who moved the resola-
tion, or to those who have supported him. As-
sured I am, that those gentlemen regard this busi-
ness in a very different light from what we do. or
they would not have brought it forward. • Believ-
ing that the law in question is a bad one, and may
be constitutionally repealed, it was their duty to
endeavor to effect its repeal.
Permit me now, sir. to glance in as cursory a
manner as possible, that I may take up no more
of your time than need be. at some of the reasons
which have been assigned by the friends of this
resolution. We have oeen told that the law pro-
posed to be repealed, is unnecessarily expensive.
That it is not calculated to promote the proper
objects of a judiciary, and may be constitutionally
repealed. That the old system, which Uiis has
superseded, was sufficient for the due administra-
tion of justice, and therefore it is expedient to re-
vive it.
It is true, sir, that the retrenchment of expenses
has been recommended to us by the President. It
was his duty to do so. It is what the people had
a right to expect from us as well as him. And
these expectations, I trust, would not have been
disappointed, even if our attention to it had not
been invited by the Executive. We are placed
now in a very different situation from what we
have been for several years. The war in Europe
is over. A war, permit me to say, more dreadnil
than any we read of. It has raged like a tremen-
dous tempest, bearing down almost everything be-
fore it. It was not to have been expected that
this our nation, towering like the majestic oak,
should have escaped its fury, yet it has left us
standing — the pride of the forest, and the only one
to which it has not done some cruel mischief. But
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HISTORY OF CONGRESS.
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the storm is passed by ; the danger is over, and
many expensive establishments may now be re-
duced which could not before have been relaxed.
It mav now be economy to save, wbat it would
have tnen been ruin not to have expended. But
is the Judiciary of a nature to be reduced to what
is called a peace establishment ? From the man-
ner in Avhicn gentlemen have talked of the expense
of this department, it would seem that the sum to
be saved by the measure now contemplated, was
one hundred and thirty-seven thousand dollars,
Tvhereas the real amount is only about thirty thou-
sand dollars. It is true, sir, this sum itself, were
it even less, would be too much to squander away.
But when you consider, that if you revive the
former law, you must unavoidably increase the
number of the judges of the Supreme Court, the
difference of expense between the two systems
will, probably, be about twelve or fifteen thousand
dollars. And for this sum, amounting, among the
people, to less than one third of a cent per man,
will gentlemen persist in a measure calculated, in
the opinion of almost half of the members of this
body, to subvert your Constitution ? Is this the
economy which our constituents require from us?
Do they wish us, like rash and greedy gamesters,
to risk their all upon one single cast of the die ?
If the gentlemen are right, we save about twelve
or fifteen thousand dollars. If they are mistaken
in their opinions, w^ lose our Constitution. Is
there any possible comparison between the advan-
tage and the risk? But for argument sake be it
admitted, that the danger on either hand is equal.
Let us then examine the claims of each opinion to
preference.
By the former law, which it is now proposed to
repeal, there were six judges of the Supreme Court
appointed in the United States. In each State
was placed one district judge. For each State
there was held a circuit court twice a vear: this
was composed of one or more of the juages of the
Supreme Court and the district judge. The dis-
trict judge in each State held a court of his own
four times a year. The judges of the Supreme
Court, besides holding these circuit courts, were
twice a year to hold a Supreme Court at the seat
of Government. One objection, in my mind, to
the old system, was the duties of the inferior and
superior judges being blended together and not
sufficiently separated. Thus the judge of the dis-
trict court was called to go up and associate him-
self with the judge of the Supreme Court ; who
was obliged to come down from the highest court
to hold a circuit court. Your judges were like
a Proteus; constantly changing their character.
Each set of judges, in my opinion, ought to have
their appropriate sphere, and should never be suf-
fered to move out of it. Another objection is not
without its weight. The same judges did not al-
ways attend the same circuit court -, and, accord-
ing to the gentleman from Georgia, (Mr. Balu-
wiN,) this change is necessary, in order that the
judges may in turn become, all of them, acquaint-
ed with the municipal laws and customs of the
different States. Wnat was the consequence? A
judge, after attending a circuit court, and hearing
a learned argument, was obliged sometimes to post-
pone his determination to the next term. When
that arrived, a judge of the Supreme Court attend-
ed ; but not being the same that attended before,
a new argument became necessary. This, sirj
may have been delightful sport for the gentlemen
of the bar : the poor clients must have telt far dif-
ferently. But the strongest objection to the sys-
tem was the impossibility of the judges discharg-
ing the duty required of them. These six judges
were to attend, among; them, eight and thirty courts
in one year. Considering the immense extent of
country over which these courts were spread, and
making due allowances for the many causes which
would probably always prevent two or more of
the judges from attending the circuits, each judge
would have to attend twelve courts in a year. Ijf
this system is to prevail, you must select your
judges as you enlist soldiers. Instead of inquiring
for lawyers of integrity and talents, you must look
out for able-bodied men ; for such as are best fitted
to stand the fatigue of constant travelling, and least
liable to be affected by the inclemencies of weather.
It is impossible, if gentlemen will reflect, that they
can believe it expedient to revive a system so lia-
ble to objections, so impossible to be executed.
Let us now for a moment examine the law which
is proposed to be repealed. It classes the United
Slates into six circuits. In each of the States
comprising a circuit, there is a circuit judge. In
each circuit there is a court composed of the cir-
cuit judges, living within that circuit. The judges
of t he Supreme (Jourt hold their sessions at the seat
of Government twice a year. There is an appeal
from the district court of each State, to the court
of the circuit within which that State is classed.
From the determination of the circuit court there
is a final appeal to the Supreme Court. The same
judges are not here, as under the former law, judges
of the superior and Inferior courts. Each has his
proper station. No jud^e will here have to act *
upon an appeal from his own decision. In the
one there is order and symmetry; in the other
naught but confusion.
But it would seem in vain to reason upon the
relative value of the two systems ; for gentlemen
think that they have discovered, by arithmetical
calculations, that the late law was unnecessary.
They endeavor to prove that the suits were de-
creasing in number at the time the additional
judges were appointed. The document they rely
upon for this purpose, is a return made from the
clerks of the different circuit courts, showing the
annual number of suits brought in each court since
the year 1790. This return is not only inaccurate,
but furnishes directly the reverse conclusions from
those which have been drawn from it. I say it is
inaccurate^ because the return from the court of
Maryland is entirely omitted, and the aggregates
of the suits in the States of Tennessee and Ken-
tucky are only given. It is incorrect in another
respect. On the returns from the States of Mas-
sachusetts, and Virginia, it is stated that the suits
depending are not included in those columns
wnich show the number of suits annually institut-
ed. This document, therefore, is too glaringly
135
HISTORY OF CONGRESS.
136
Senate.
Judiciary System.
January, 1802.
incorrect to be relied upon for establishing any
conclusion which ought to guide us in business of
this importance. But let us take it as we find it,
and see if the calculations of the gentleman from
Kentucky (Mr. Breckenridge) are more to be
relied upon than the document itself. The gen-
tleman says that in 1799 there were twelve hun-
dred and seventy-seven suits instituted; and in
1800 there were six hundred and eighty-seven suits
commenced; showing a decrease, '^notwithstand-
ing," as he says, "all the temporary and untoward
sources of federal adjudication," of five hundred
and ninety suits. There is one circumstance of
importance to be noted in making this calculation.
In the year 1799 there were four hundred and
twenty-three suits brought in South Carolina,
which is more than one half of the whole number
of suits brought in that State for ten years to-
f ether. The greater part of these suits were
rought by Miller and Company, for the infringe-
ment of a patent right which they had obtained.
The largest number of suits brought in that
State, in any one year preceding the year 1799,
was one hundred and four. The gentleman from
Kentucky includes these suits in that year's ac-
count 423
He includes all the criminal suits brought in
those States from which the returns are
made, amounting to 132, and all other
suits, amounting to 722 - - - - 854
Making, for suits brought in the year 1799,
the number of 1277
Then he allows for suits of 1800. only 687
He omits the whole of the criminal suits
of that year, which amounted to 102,
and of other suits 100; making to-
gether, thus omitted,
Biaking together . . _
- 202
- 889
Leaving a decrease of suits, instead of 590,
only 388
It will be observed, as before mentioned, that
there are included in the account of suits
brought in the year 1799, 423 suits brought
that year in the State of South Carolina.
These exceed by 319 the highest number
of suits brought in any preceding year in
that State. It will therefore be necessary
to deduct these out of the above number,
in taking a fair view of this subject - 319
The real decrease between the years 1799
and 1800 will only be - - - - 69
But, in order to place this business in a still
clearer point of view, I beg leave to submit a cal-
culation showing the annual aggregate number
of suits from 1790 to 1800, from which I have ex-
cluded the whole of the suits brought in South
Carolina since the first establishment of the courts,
viz:
In 1790, one hundred and eleven 5 in 1791. three
hundred and six; in 1792. three hundred and elev-
en; in 1793, four hundrea; in 1794, three hundred
and sixty-five; in 1795, five hundred and twenty-
seven; in 1796, four hundred and sixty-six; in
1797, nine hundred and twenty-four; in 1798, six
hundred and fourteen; in 1799, eight hundred and
fifiy-four; in 1800, seven hundred and eighty-one
The following calculation is made in order to
show the number of suits brought, including- those
of South Carolina, from 1790 to 1800, viz :
In 1790, one hundred and eleven; in 1791, three
hundred and thirteen; in 1792, three hundred and
thirty-three; in 1793, four hundred and forty-six;
in 1794, three hundred and eighty-five; in 1795.
six hundred and fourteen; in 1796, four hundred
and ninety; in 1797, nine hundred and seventy-
seven ; in 1798, seven hundred and nineteen ; in
1799, twelve hundred and seventy-seven; in 1800,
eight hundred and eighty-nine.
Thus^ although it is apparent that there has been
a gradual increase of suits, since the first establish-
ment of the judiciary, yet the gentleman from
Kentucky has endeavored to impress an opinion,
that the suits have decreased in the proportion
that six hundred and eighty-seven bears to twelve
hundred and seventy-seven; and this, to use the
gentleman's language, "notwithstanding all the
temporary and untoward sources of federal adja-
dications." Yet he has taken special care, in order
to swell up the suits of the year 1799, to draw
from "these temporary and untoward sources of
federal adjudications," all the criminal suits of
that year, and to include the three hundred and
nineteen suits of Miller and Company; but ob-
serve, when he comes to put down the suits of 1800,
to contrast them with the number brought in 1799.
these ^'untoward sources" are immediately dried
up ; for he excludes from his account all the crim-
inal suits of that year, and one hundred other suits.
Prav, sir, what kind of arithmetic is this? Is this
the federal arithmetic which gentlemen have talk-
ed so much about ?
Permit me now, sir, to say but a word or two
upon the unconstitutionality of this measure. The
Constitution has declared that the judicial power
shall be vested in a supreme court, and in such
inferior courts as Congress may, from time to
time^ create. It has added, that the j udges of both
the inferior and superior courts shall hold their
offices duing good behaviour; but maybe remov-
ed on impeachment, by the House of Representa-
tives and conviction by two-thirds of the Senate.
What words can ffo stronger to the exclusion of
every dependence of that department upon the
pleasure of any other? "Aie people have thus duly
secured the two great objects they had in view,
the independence of the judges, and their respon-
sibility. This, however, is a new way of getting
at the judge without affecting his inaependence.
We will not touch the judge, but we lirfll slip the
office from under him. We will not lower his sal-
ary while he is in office, but wc will so contrive it
that he shall be divested of his office and salary at
the same time. Thus, a mere majority of each
House, with the concurrence of the President, shall
effect, without any fault in the judge, what the
people designed should be brought about only by
impeachment. But we are asked, "suppose Con-
gress should appoint an army of judges?" I will
137
HISTORY OF CONGRESS.
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January, 1802.
Judiciary System.
Senate.
suppose no such thing. There is every security
the nature of the case will admit of, that they will
not do it. I will suppose the ahuse of no power
fvrhich is delegated by the Constitution, except
'what is supposed and guarded against by that Con-
stitution, if gentlemen will suppose the abuse
of power in creating unnecessary offices, it is
equally fair to suppose the abuse of the power they
contend for, viz: that of destroying the courts.
I may suppose that it will be done to get rid of
judges, however salutary the system under which
they may be appointed.
I trust, therefore, sir, that this resolution will
not prevail, since it manifestly appears that the
system which gentlemen propose to destroy, is in
itself preferable to that which they intend to revive ;
and that the expense between the two is inconsid-
erable. But how much more ought this measure
to fail, when, without any possible benefit from
the change, it is to destroy the independence of the
judges, and prepare the way for the subversion of
our Constitution!
Mr. Wright observed, by the constitution of
Maryland the judges of the Supreme Courts hold
their commissions during good behaviour; the
justices of the peace, who hold tbeir county
courts, were subject to an annual appointment,
hut it being found impracticable to procure law
characters to act as justices of the peace, and that
none other were qualified to decide questions of
law. it became necessary to change the system,
and, in 1793, a law was passed dividing the State
into five districts, with a law character at the
head of each district to ride the circuit, who, with
two associates for each county, composed the
county courts instead of the justices under the
old system. These new judges were appointed
hy the law during good behaviour ; but this law
hein^ like all new laws, a measure of experiment,
was limited to a short duration, and has been from
time to time continued. At the last session many
important amendments being contemplated, the
law was repealed, and a new law passed embrac-
ing the proposed amendments.
I have heard of but two judges being appoint-
ed under the new law; both of them were judges
under the old law, and both were Federalists. —
Mr. Ridgely, formerly a Republican, latterly a
Federalist ; Mr. Tilghman, always a Federalist,
who, although he supported his own opinions with
firmness, always treated the opinions of others
with respect and politeness, whose amiable private
character and judicial integrity had been so gene-
rally satisfactory, that not a member of either
branch of the Legislature intimated his removal.
From this view it must appear, that our Govern-
ment, which is truly Republican, was not impell-
ed by the unworthv motives that have been as-
cribed to her, and tnat Federalists of merit where
they can be found are treated there with respect.
Now, let me call your attention to a case in Ma-
ryland, when the Qovernment was Federal, and
in doing that, if I should in any respect misstate
it, I hope my colleague, who, I believe, at that
time was a member of the State Senate, will cor-
rect me. In 1791, it was found necessary to es-
tablisli a criminal court for Baltimore town, and
a law passed authorizing the appointment of a
judge with a salary, and four associates, (whose
commissions were during good behaviour,) to hold
that court. This law was also limited to a short
period ; Mr. Chase, then judge of the general
court, then a Republican, was appointed the judge '
of the criminal court. ' At the next session of the
Legislature, there was an attempt to impeach him
on the ground that the offices were constitutional-
ly incompatible ; this, however, failed ; the Le-
gislature, then, to get rid of Mr. Chase, repealed
the lawj and renewed it ** totidem verbis.'^* The
Executive, however, renewed Mr. Chase's com-
mission ; but, at the next session, so fixed were
the Federalists on their purpose, that they repeal-
ed that section of the law that related to the
judges, and amended it, that " the district judge
should be the judge of the criminal court,'' and
thus dismissed Mr. Chase, the obnoxious judge.
But, during all this business, in neither case was
the Constitutional right to repeal these laws ever
Questioned, although the judges' commissions were
uring ^ood behaviour; which must show the
Legislative opinion, that a commission during
good behaviour could not be beyond the law that
created it, and must furnish strong evidence to
the point before us, at two difierent periods in the
politics of Maryland, that will suit each side of
the House, and form a contrast in which I think
the Republicans will not suffer.
Mr. UoLHOUN, of South Carolina. — Much time,
Mr. President, has been spent in the important de-
bate on the resolution before you; great ingenuity,
great abilities, and much eloquence, have been
displayed on the occasion, by gentlemen on both
sides of the question, and the subject presented in
almost every possible point of view. For me,
therefore, at this late sta^c of the debate, to rise,
for the first time, in this House, on a subject of
such magnitude and intricacy, already so ably dis-
cussed, and expect to throw much light on the sub-
iect, or find much new ground to tread on, would
be presumptuous. But, thinking as I do, that the
present question, both in principle and in its con-
sequences, is of the highest importance to the
Union ; under this impression, under this convic-
tion, 1 should be unfaithful to my own feelings. .
were I to five a silent vote on the occasion. 1? I
can, therefore, throw but the weight of a feather
in the scale that I think ou^ht to preponderate, I
shall think myself justified in doing so. But, sir.
the subject has been so much exhausted, as well
as the patience of the House, that 1 shall endea-
vor to be as concise as possible, and draw into as
narrow a circle as so extensive a subject will ad-
mit, the leading features of the case, which, I ap-
prenend, should have most weight in deciding the
question.
First, then. I shall endeavor to show, that the
present resolution, in its effect, is repugnant to the
express letter and spirit of the Constitution. And,
secondly, I shall contrast the obvious and natural
consequences that will arise from agreeing to the
resolution, with those that would follow should we
disagree.
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HISTORY OF CONGRESS.
140
Senate.
Judiciary System,
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On the first point, the most important, as well
as the most proper question, is, have we power,
under the federal Constitution, to repeal the late
act of Congress, so far as it respects the ofl&ce and
salary of the judges appointed under that act? If,
by the letter and express words of the Constitution,
we have not the power, then farther reasoning on
the subject would be unnecessary, and arguments
dra^nfrom expediency or inexpediency would be
useless and irrelevant to the question.
I am not, sir, disposed to advocate the late Ju-
diciary system in all its modifications, as I think it
imperfect, and not adequate to the purposes in-
tended, and that it is not such an arrangement of
the Judiciary as ought to have been adopted. But,
as it has got into existence, and is in operation, and
the judges appointed under the act^ commissioned
agreeably to tne Constitution, during good beha-
viour, the ground is now changed ; and although,
previous to the adoption of the act, opposition to
the inexpediency of the measure would have been
right, would have been proper ; yet now, under ex-
isting circumstances, as the law has passed, and
the Constitution has attached to the ofiice of the
judges appointed under it, durability of office, co-
extensive with good behaviour, to amend would be
proper, but to repeal the act, at least so far as it
respects the judges, would be unconstitutional; for
I am of opinion, that as soon as their appointments
were completed, and their commissions during
ffood behaviour received, that then their offices as
ludges were completely beyond the reach of Legis-
lative power; and that therefore the present reso-
lution, in its operations, so far as it respects the
office of the juages, is unconstitutional, and ought
not to be agreed to.
Permit me here, sir. to define the legal rule of
explaining a deed, a law, or Constitutional point,
and then to apply the part of the Constitution in
question to that rule. The rule of law is to make
such an exposition of the section or clause under
consideration, as will com port with its plain mean-
ing when the words are taken in their common
and usual acceptation, agreeably to the English
language. If the clause is composed of dubious
and uncertain expressions, that will admit of dif-
ferent meanings, or if several parts of the instru-
ment seem to contradict, or be repugnant to each
other, then the rule is, to make sucn a construction,
if possible, as will be consistent with reason, and
agreeable to the intention and purview of the
whole instrument taken together. I think I am
correct on the rule of la w. Let us now examine tht
parts of the Constitution connected with the pres-
ent subject, and apply to them the rules of law.
Amongst the detailed powers of the Legislature,
under the eighth section of the first article of the
Constitution, we find the following, to wit: "to
const! lute tribun lis inferior to the Supreme Court."
If this was the only clause giving them power
to establish the inferior courts, I would readily
grant that the Legislature could make the law,
and at pleasure repeal it, and that the judges, as
to the tenure of their office under the act, would
be at the will of the Legislature, the existence of
the law determining the office of the judge, pre-
cisely in the same manner and on the same foot-
ing as of the Secretary of State, the Secretary of
the Treasury, and the Secretary of the Navy. But
the subject is more fully expressed and explained
under tne proper head, in the first section of the
third article of the Constitution, where it says:
*'The judicial power of the United States shall be
* vested in one Supreme Court, and in such in-
* ferior courts as Congress may. from time to time.
'* ordain and establish. The judges, both of the
^ supreme and inferior courts, shall hold their of-
^ fices during good behaviour; and shall, at stated
* times, receive for their services a compensation
* which shall not be diminished during their con-
^ tinuance in office."
Here the intention of the Constitution is ex-
plicit, and cannot be doubted ; plainer words and
a more clear constructed sentence cannot be pen-
ned. " The judges, both of the supreme and in-
ferior courts, shall hold their offices during good
behaviour." We all fully and at once understand
what is good behaviour in a judge, the oath he
takes and the very nature of his office show it ;
to act with justice, integrity, ability and honor,
and to administer justice speedily and impartially,
is good behaviour ; if he acts contrary, it would be
misbehaviour, and the Constitution in that case
has given a remedy by impeachment. If the
clau^e, therefore, admits a certain, clear, and con-
sistent construction, and no other part of the Con-
stitution contains any article contradictory to it,
which I contend is the case, the construction
given by the gentlemen on the other side, being
by implication only, and that against the plain
and express words of the clause, will not be war-
ranted by the principles of law; for if the Con-
stitution is paramount to an act of the Legisla-
ture, then to hold an office during good behaviour,
and during the pleasure of the Legislature, are
synonymous terms ; it must be so, or the act
would be repugnant to the Constitution. The
Constitution, on the face of it, appears to have
been drawn with precision and correctness, noth-
ing superfluous, nothing deficient. Had the Con-
vention intended the construction now insisted
for by the favorers of the resolution, to wit: that
the judp^es of the inferior courts held their offices,
not during good behaviour, but at the will of the
Legislature, an explanatory clause after the words
" good behaviour," would have been necessary and
should have been inserted, to this efi*ect : •' Pro-
vided always, that the judges of such inferior
courts shall hold their offices only during the ex-
istence of the law under which they may be ap-
pointed." By the clearness with which every part
of the Constitution has been penned, it is right, it
is fair, by analogy of reasoning, to say, that as no
such provision is inserted, no such supposed con-
struction was intended, and that therefore the plain
letter and spirit of the Constitution must prevail.
But, if possible, to make the matter more clear and
conclusive, I beg indulgence, whilst I state three
collateral arguments which g^reatly strengthen and
enforce the construction which I advocate of -that
part of the Constitution. The first is, that all
enlightened statesmen, at least since the Ameri-
141
HISTORY OF CONGRESS.
142
January, 1803.
Judiciary System.
Senate.
can Revolution, with concurrent testimooy, affree,
that the Judiciary ought to be kept separate trom,
and iDdependent of the Legislative and Executive
poTV'ers ; that without this check and control, there
could be no true and rational liberty. Secondly,
that the framers of the Constitution, who were
themselves amongst the best informed and most
distinguished citizens of the Union, intended to
keep them distinct and separate, as the three great
divisions and supporting pillars of the Constitu-
tion ; this appears from the distinct position they
assigned each on. the face of that instrument.
Ana thirdly, by the latter part of the first section
of the third article, the Legislature have no power
to lessen a judge's salary, even to the amount of
one cent. This restriction must refer to the Le-
f^islature, as they alone have control over the
unds of the Government ; for the rule of law is,
''that is certain, which can be rendered certain."
If, therefore, this clause restrains the Legislature
from even diminishing the salary of the jud^^e,
a forrtioris it prevents the removal from the office
itself, as the words composing. the whole clause
are equally plain and expressive. Thus it appears,
at least to me, by the plain and obvious construc-
tion of the words of the Constitution, confirmed
and explained by the makers of it, that all the
judges have a right to hold their offices during
good behaviour, and that the Legislature, as a crea-
ture of that Constitution, cannot by any Legisla-
tive act, remove them. The gentlemen who ad-
vocate the resolution, in support of the measure,
say, that Virginia, Maryland, and the last Con-
gress, afford examples of the Legislature abolish-
ing courts, and removing from office judges who,
under a Constitution, held their appointments as
in the present case, during good behaviour. Let
us examine the facts, and see if they apply. Vir-
ginia had a general court, with common law juris-
diction, which extended throughout the State, a
court of chancery, with equitable jurisdiction,
equally extensive, and a court of admiralty ; the
judges of these three courts constituted the court
of appeals. About the year 1787, the Legisla-
ture of that State found it necessary to establish
circuit courts, and in the law enacted, that " the
judges of the court of appeals should be the cir-
cuit court judges." This law the judges refused
to execute as unconstitutional, and said, ''they
' considered themselves as forming one of the three
* pillars on which the great fabric of government
'* was erected, and that, when this pillar wasendan-
* gered, a resignation would subject them to the re-
' proach of deserting their stations, and betraying
' the sacred interests of society, entrusted with
* them; that the propriety and necessity of the
' independence of the judges, is evident in reason
' and the nature of their office, and that this ap-
' plies more forcibly to exclude a dependence on
' the Legislature, a branch of whom, in case of im-
' peachment, is itself a party." This was the opin-
ion formed on the law by the then judges, who were
some of the ablest lawyers, and greatest statesmen
in the Union. I believe the event was. they pro-
tested aj^ainst the law as unconstitutional, resigned
their ofllces. had the resignation recorded, and after-
wards were appointed circuit judges. If this
statement is correct, which Ijpr&sume in substance
it is, can it be said, that it anords an example that
would justify, or in the smallest degree support
the principles of the resolution ? In the case of
Maryland, I have not had full information, there-
fore cannot decide.' In the case of Tennessee and
Kentucky, the district courts were abolished ; the
judges wer^ not removed from office; but by law
continued as circuit court judges, with additional
duties and additional salary of five hundred dol-
lars each. They neither vacated their office, nor
had to take a new oath or new commissions ;
therefore, in this case, there was no violation of
the Constitution. But, to sum the business up,
the case of Virginia is against them; the case of
Kentucky and Tennessee, not in point ; and Mary-
land, should it afford an example, is the only and
solitary one. But, let us now suppose for argu-
ment sake, though the fact is otherwise, that half
of the States in the Union passed such laws; if
those laws are founded on wrong and unconstitu-
tional ground, should they be a precedent for us?
Surely not. If they were founded in error, we
ought to correct and not continue the error.
Some gentlemen have said, although we cannot
remove the judge from the office, yet we can re-
move the office from the judge. To me this is a
paradox in legislation. L)o we mean to act indi-
rectly, what we would not profess to do openly and
directly? Are the gentlemen prepared to meet
this question in all its consequences ? Let me
suppose they are, and sketch a law founded on
the consequences of their repealing act, and ex-
hibit the case in its real and true light. In fram-
ing a law the preamble should state facts, and ex-
plain the reasons for passing the act. Suppose,
then, we should introduce, instead of their present
repealing law, the following, viz : Whereas A,
B, C, <&c., the sixteen Federal judges appointed
under the late act of Congress, although they have
been commissioned during good behaviour, and
have discharged the duties of the office with in-
tegrity, ability, and honor yet we,ihe Legislature,
in Congress assembled, Ending their number to
be more than we judge necessary for the adminis-
tration of justice to the good people of the United
States, and deeming the law under which they
act not the best possible system that could be
adopted, and thinking, also, that the public good
requires that the juages of the inferior courts
should not hold theij offices during good beha-
viour, but should hold them at the will of the Le-
gislature : Be it therefore enacted. &c., That the
said sixteen Federal judges shall be, and they
hereby are, removed and discharged from their re-
spective offices as judges, and shall not be entitled
to any compensation or salary after the passing of
this act. This act and preamble would be in truth
only what the repeal! ns act in its effects intended,
and will naturally produce.
Are we.prepared to vote for a law in this form,
with all the true reasons stated on the face of the
act, and to wish that publicity should be given to
it among our constituents, as an act that com-
pletely destroys the independence of their judges?
143
Sen/lte.
HISTORY OF CONGRESS.
Judiciary System.
144
Jandarit, 1802.
For the removal of the judges, 1 may venture to
assert, is the great object of the repeal ; and in
this consists the injury from the Legislature as-
suming a power, without giving any reason in the
act, as in the present case, ^'to repeal at pleasure
any law establishing an inferior court." and by
that means dismissing the judges from office.
Party spirit caprice, or personal dislike, would be
sufficient cause of removal from office ; the judges
would know this, and perhaps some of them soon
feel it. Let us suppose, and it is even supposable,^
that a cause came on hefore one of the dependent
judges, between an influential member of Con-
gress and a poor and obscure citizen ; would any
person say tnat the parties stood on equal ground,
and that the scales of justice hung equal between
them?
. It would be almost beyond human nature for
this dependent judge to be impartial, especial-
ly if his salary was the only means of subsist-
ence ; and men of great abilities, and well fitted
for the office, might be in that situation, for a wise
man tells us, that " the race is not always to the
swift, nor riches to men of understanding:." So
fully am I convinced that the judges ought to be
independent of the Legislature as well as of the
Executive, that if there could be a doubt that they
/are not fully and completely so, the Constitution
ou^htto.be amended for that express purpose.
Hitherto, the judges have supposea themselves to
be independent, and the people have acquiesced
under that belief, and ought and do wish their
judges to be independent. One or two observa-
tions will prove their opinion on this point. All
the States in the Union have, in their several
constitutions, made their judges independent. The
people at large, in^every State, having sent mem-
bers to their respective conventions, those con-
ventions having fixed the conditional durability
of offices in their judges, and the people uniform-
ly acquiescing under their system, afford suffi-
cient evidence of the public sentiment. Besides,
in the case of Mr. Chief Justice Jay. when ap-
pointed Envoy Extraordinary to the Court of
Great Britain, was not opposition to the appoint-
ment echoed from one end of the Continent to
the other 1 That the example was dangerous, it
put the judges under the influence of the Execu-
tive; that, although the prospect of an honorary
appointment within the gift of the President was
remote, yet it might influence and lessen their in-
dependence. If, then, the ^people were so alive
and quick in feeling, when the causes of alarm
were so remote and contingent, what will, what
must, be their opinion, when they find out that the
judges, from being independent, by holding their
offices during good behaviour, are reduced to the
servile situation of holding the office at the will,
at the caprice of a Legislature? Is the public
mind prepared for a shock of this kind ? Shall
the Legislature with a strong arm, and by an as-
sumed power, destroy their independence, and
thereby their existence as one of the pillars of the
Constitution ? In this situation of your Judiciary,
will the streams of justice flow equallv to the
habitation of the rich and cottage of tne poor ?
No man who knows human nature will answer
in the affirmative.
Let us now for a moment examine the conse-
quences of giving a negative to the present resola-
tion. If the resolution is not agreed to. what are
the dreadful and fatal consequences tnat would
follow ? I answer, the worst that can possiblf
happen is, the annual payment of about thirtj
thousand dollars, the salaries of all your circuit
court judges, who do the whole business of these
circuits throughout all parts of the Union. Their
number will neither impede justice, nor injure the
principle or execution of it. It is not in contro- |
versy, the ri^ht of the Legislature to arrange and
modify all the courts of justice, so as to make
them best answer the distribution of justice witii
convenience to the citizens ; the whole Judiciary
can be systematized and put on the best and most
respectaole footing, without violating your Con-
stitution. If the circuit court judges are too nu-
merous, say in your revising law, when vacancies
happen, that such vacancies shall not be filled up
untu the whole are removed, or as many of them
as it may be necessary to remove. Thus the evil ,
would be continually remedying itself, and at no
very remote period would be totally renioved. i
and that without any interference with the Con-
stitution.
On the other hand, should the resolution be car-
ried, what are the evils that would result ? Your
judges in that case would hold their offices at the
will of the Legislature, and be their mere crea-
tures, subservient to all their whims, caprice, and
party spirit^ would cease to be a check or barrier
between them and the people, in cases of uncon-
stitutional acts and abuse of power. It would also
produce, agreeable to the course of human na-
ture, a servile disposition, which by degrees
would enervate the mind, and completely, in pro-
cess of time, destroy that manly independence and
firmness, so essential to an uprignt and good
judge.
If. then, the evils, as I have stated, would be
greater from adopting the resolution, than those
that would result from passing a negative on it;
and we add to that balance, at least the doubt of
its being against the Constitution — and that this
doubt is well founded is evident from the nearly
equally divided opinions of the members within
the walls of the Senate, and by the sentiments of
thousands throughout the United States, of the
ablest statesmen and best citizens — let us, then,
on this, at least precarious and doubtful ground!
tread light and step with caution ; for to destroy
the independence of the judges, is wounding the
Constitution in a vital part — it is removing one
of the main pillars that support it. If we begin
to infringe the Constitution in one instance, we
may in another, and, by slow and imperceptible
degrees, alter all the great and leading principles
of it, until at last the substance would be gone,
and the shadow only remain : for, like a bc^y of
water, if one drop fmakes its passage, the whole
stream will soon follow.
Mr. C. then went at some length into a full
statement of the duties and jurisdictions of the
145
HISTORY OF CONGRESS.
146
January, 1802.
Judiciary System.
Senate
supreme, circuit, and district courts; showed
Tv^here he thought them defective, and pointed out
the practical amendments necessary to make a
complete and uniform Judiciary ; he urged that
such amendments would produce a system much
preferable to either the present or former,. and
would render the present motion for a repeal un-
necessary. This statement be gave preparatory
to his motion, which was as follows:
'' Ruohedn That a committee be appointed to in-
quire if any, and wl^t, alterations are necessary in
the Federal Judiciary system."
This was rejected b)r the Vice PRESinsNT as
being out of order ; which gave rise to a verbal
amendment, that the word " repealed." in the ori-
ginal motion be struck out, and the words " revis-
ed" and " amended," be inserted, moved by Mr.
Datton, to the original resolution, on wbicn the
yeas and nays were taken, and it was determined
in the negative, as follows :
YxAs — Messrs. Chipman, Colhoun, Dayton, Dwight
Foster, Hillhouse, Howard, J. Mason, Morris, Olcott,
Sheafe, Tracy, Wells, and White— 13.
Nats — Messrs. Anderson, Baldwin, Breckenridge,
Brown, Cocke, Ellery, T. Foster, Franklin, Jackson,
Logan, S. T. Mason, Nicholas, Stone, Sumter, and
Wright— 16.
The main question was carried by a similar
division, and Messrs. Anuerson, Baluwin, and
Breckenriuoe, were appointed a committee to
bring in a bill.
WEUNEsnAT, January 20.
The Senate assembled, but, there being no quo*
rum, adjourned.
THURsnAT, January 21.
The credentials of Samuel Wbite. appointed
a Senator by the Legislature of the State of Del-
aware, to supply the vacancy occasioned by the
resignation of their late Senator, Henry Latimer,
were presented and read, and the oath prescribea
by law was administered to him by the Vice
Presiubnt.
Mr. Anuerson, from the committee to whom
was ceferred the bill authorizing the discharge of
Laurence Erb from his confinement, reported an
amendment ; which was read.
Ordered^ That it lie for consideration.
Mr. Tract, from the committee of conference
upon the difierinsf votes of the two Houses, on the
amendments to the bill concerning the library for
the use of both Houses of Congress, made a re«
port, and the report was adopted: Whereupon,
Resolved, That the Senate do adhere to their
fourth and sixth amendments, and recede from
their seventh amendment, to the said bill.
both Houses of Congress." They have passed a
bill fixing the Military Peace Establishment of
the United States, and a bill for the protection of
the commerce and seamen of the united States
in the Mediterranean and adjoining seas ; in
which they desire the concurrence of the Senate.
The bill first mentioned in the message was
read, and, by unanimous consent, was read a sec-
ond time, and referred to Messrs. Jaokson,
Dattom, and Howaru, to consider and report
thereon.
The bill last mentioned in the message was read
the first, and, by unanimous consent, a second
time, and referred to Messrs. Baluwin, Sheafe,
and Morris, to consider and report thereon.
Mr. ANnERSON, from the committee to whom
was referred, on the 19th instant, the resolution
for the repeal of an act of Congress, passed on the
13th day of February, 1801, reported a bill to re-
peal certain acts respecting the organization of
the courts of the United States, and for other pur-
poses; which bill was read, and ordered to the
second reading.
The Senate proceeded^ to consider the amend-
ment, reported by the committee, to the bill au-
thorizing the discharge of Laurence Erb from his
confinement, and the report was adopted, and the
bill being further amenaed ; on motion to expunge
the last proviso, to wit :
" That the said judgment shall remain in full force
against any estate, real or personal, which the said
Laurence Erb may hereafter acquire, and that process
may at any time be thereupon issued against the
same :"
It passed in the negative — yeas 4, nays 21, as
follows :
YxAs — Messrs. Jackson, Morris, Wells, and Wright.
Nats — Messrs. Anderson, Baldwin, Breckenridge,
Brown, Chijpman, Cocke, Dayton, Ellery, T. Foster,
Franklin, Hillhouse, Howard, Logan, 8. T. Mason, J.
Mason, Nicholas, Olcott, Sheafe, Stone, Sumter, and
White.
On motion, that this bill pass to the third read-
ing as amended : it was determined in the affirm-
ative— yeas 19, nays 4, as follows :
YxAs — Messrs. Anderson, Baldwin, Breckenridge,
Brown, Chipman, Cocke, Dayton, Ellery, Franklin,
Jackson, 8. T. Mason, J. Mason, Nicholas, Olcott,
Sheafe, Stone, Sumter, Wells, and Wright
Nats — Messrs. T. Foster, Hillhouse, Howard, and
Morris.
Friuay, January 22.
A message from the House of Representatives
informed the Senate that they receae from their
disagreement to the fourth and sixth amendments
to the bill concerning the library for the use of
Monuat, January 25.
James Ross, from the State of Penubylvania,
attended.
The bill, entitled '^ An act authorizing the dis-
charge of Laurence Erb from his confinement,"
was read the third time, and passed.
Mr. Ross presented the memorial of the Phil-
adelphia Chamber of Commerce, sisned Thomas
Fitzsimons, President, stating the decayed situa-
tion of the piers erected in the river Delaware, for
the protection of vessels in the Winter season, and
praying Congress to make such appropriations.
147
HISTORY OF CONGRESS.
148
Senate.
Judiciary System,
January, 1802.
and take such other order thereon, as the necessi-
ty of the case requires ; and the petition was read.
Ordered^ That it lie for consideration.
The bill to repeal certain acts respecting the
organization of the courts of the United States,
and for other purposes, was read a second time ;
and, it was agreed that the consideration of this
bill should be the order of the day for to-morrow.
TuEsuAY, January 26.
Mr. Baluwin, from the committee to whom
was referred the bill for the protection of the
commerce and seamen of the United States in
the Mediterranean and adjoining seas, reported
amendments; which were read.
Ordered^ That they lie for consideration.
The Senate resumed the second reading of the
bill to repeal certain acts respecting the organiza-
tion of the courts of the United States, and for
other purposes; and, having agreed to sundry
amendments,
On motion of Mr. Dayton,
" That the bill be referred to a select committee^ with
infltructions to consider and report the alterations which
may be proper in the Judiciary system of the United
States, and the provision to be made respecting the
judges of the circuit courts, established by the act of
the 13th of February, 1801, in case the said act shall
be repealed :"
It passed in the negative — yeas 14, nays 16, as
follows :
Yeas — Messrs. Chipman, Bayton, Dwight Foster,
Hillhouse, Howard, J. Mason, Morris, Ogden, Olcott,
Ross, Sheafe, Tracy, Wells, and White.
Nats — Messrs. Anderson, Baldwin, Breckenridge,
Brown, Cocke, Colhoun, Ellery, T. Foster, Franklin,
Jackson, Logan, 8. T. Mason, Nicholas, Stone, Sum-
ter, and Wright.
On the question to agree to the reading of this
bill as amended, it was determined in the affirma-
tive— yeas 15, nays 15, as follows :
YsAS — Messrs. Anderson, Baldwin, Breckenridge>
Brown, Cocke, Ellery, T. Foster, Franklin, Jackson,
Logan, 8. T. Mason, Nicholas, Stone, Sumter, and
Wright
Nats — Messrs. Chipman, Colhoun, Dayton, Dwight
Foster, Hillhouse, Howard, J. Mason, Morris, Ogden,
Olcott, Ross, Sheafe, Tracy, Wells, and White.
The Vice Presiuent determined the question
in the affirmative.
So it was Resolved, That this bill pass to the
ird readin&r as anrenaed.
third
Wednesuay, January 27.
A message from the House of Representatives
informed the Senate that the House have passed
a bill to repeal, in part, the act, entitled ^' An act
regulating foreign coins, and for other purposes,"
in. which they desire the concurrence ot the Sen-
ate.
The bill was read, and ordered to the second
reading.
Mr. Morris presented the petition of White,
Brothers Sc Co., and others, in behalf of the hat
manufacturers of the city of New York, praying
additional duties on the importation of foreign
hats, and the repeal of the duties on wool and hat
trimmings ; ana the petition was read.
Ordered, That it lie on the table.
Mr. BALnwiN, from the committee to whom
was referred, on the 15th instant, the bill author-
izing the discharge of John Hobby from his con-
finement, reported the bill without amendment.
The Senate took into consideration the amend-
ments reported by the committee to the bill for
the protection of the commerce and seamen of the
United States in the Mediterranean and adjoining
seas, which were adopted ; and, on motion to strike
out the third and fourth sections of the bill, it was
agreed that the further consideration thereof be
postponed until to-morrow.
Tne Senate proceeded to the consideration of
the report of the committee on the bill author-
izing the discharge of John Hobby from his con-
finement ; and, on the question to agree to the
third reading of this bill, it passed in the negative
So the bill was lost.
- On motion, that it be
Resolved, That be, and they are hereby, ap-
pointed a committee to inquire whether ainy, and, if
any, what reg^ulations are proper to be adopted respect-
ing public officers and agents who shall squander pub-
lic money officially entrusted to them, with leave to re-
port by bill, bills, or otherwise :
Ordered, That this motion lie for consideration.
JUDICIARY SYSTEM.
The bill to repeal certain acts respecting the
organization of the Courts of the United States,
and for other purposes, was read the third timel
and the blanks were filled, when
Mr. Dayton said, that although he had been
defeated in two attempts to arrest the progress, or
turn the course of this business, he was not, how-
ever, so far discouraged as to be deterred from
making one other. It would, he said, be recol-
lected, that all which had been asked by him and
by the opposers of this measure, in the first in-
stance, was to attempt some modification of the
law proposed to be repealed ; but this was refused
them. It was then proposed that both parties
should unite their laoors with a view to revise
and amend the whole Judiciary system, but this
also was denied them. Yesterday he had offered
an amendment combining both obiects; but it
was ne^tived. He was encouraged, however, to
renew it. with a little variation, ev^n in this late
sta^e of the bill, because he had learned that it
had not been perfectly heard and understood by
one of the gentlemen who had voted against it.
He took leave to remind honorable members, that
these conciliatory motions had been rejected by a
majority of one, or at most two only, and that of
course the Senate were almost equally divided.
Mr. D. concluded bv saying, that it could not
come to good, if measures, admitted by some to
be bold and violent, and believed by many others
to be unconstitutional, should be carried by a bare
majority, and he trusted, therefore, that this pro-
position would now succeed. He then moved
149
HISTORY OF CONGRESS.
150
January, 1802.
Judiciary System,
Senate.
that the bill be referred to a select committee)
with instructions to consider and report the alter-
ations which may be proper in the Judicary sys-
tem of the United States.
Mr. CoLHOUN begged to be indulged with the
expression of a few ideas, which he considered
the more important as the bill was likely to be
carried b]f a casting yote. He had before thought,
and he still thought, the best way was to appoint
a committee to prepare a system that would ac-
commodate the varying ideas of gentlemen. He
had voted yesterday against the proposition made,
under the impression that provision was thereby
to be made for the judges. This he thought quite
Eremature. before it was known that the act would
e repealed ; as it was at any rate doubtful whe-
ther one-half of the Senate did not think the med-
itated repeal a violation of the Constitution. He
thought, for harmony, it were better to refer the
bill to a select committee. The session would be
two or three months longer, and if the report made
by the committee should not prove, agreeable,
there would be time enough to brine in another
bill. This attempt to harmonize all parties can
do no injury, while, on the other hand, a system
might be framed that gentlemen may be oetter
pleased with than even a repeal of the act.
Mr. Nicholas said, he flattered himself the sub>
ject was well understood by the Senate. What
IS now the question ? The same that has beeo so
often decided. Gentlemen, in opposition, have
said amend, but do not repeal. He could say that
every vote of that House, in every stage of the
discussion, had said repeal and do not amend. He
believed the old system required but little amend-
ment. It was the best suited t5 the interests of
the United States and of the States. The law of
the last session was in fact a bar to improvement.
Gentlemen say, why not provide for these judges
as you have provided for a judge of the Supreme
Court? He would reply that the last operation
was simple and easy of execution ; but how were
we in this mode to get rid of the circuit judges
without havin^p these courts in one part of the
Union and not m another ?
The gentleman from New Jersev has said that
this measure is admitted to be bofd and violent.
By whom is it admitted? Not by me, or gentle-
men who think with me. As to a re^rd to the
Constitution, there is no man here, let his boast of
federalism be what it may, who can take stronger
ground than I hold. Gentlemen profess a ^reat
respect for the Constitution -, but our principles
are not to be evidenced by mere professions.
They are to be evidenced by the series of our ac-
tions. My conduct, said Mr. N., since the forma-
tion of the Constitution to this day, is known by
those who know me, as well as the conduct of
gentlemen is known by those who know them.
To the people I appeal. I am not to be alarmed
by the tocsm of hostility to the Constitution that
is so loudly sounded in our ears. I hope, sir, we
shall have the question.
The question was then taken on Mr. Dayton's
motion oy yeas and nays, and resulted — yeas 15,
nays 15, as follows :
YiAS — Messrs. Colhoun, Chipman, Dayton, D. Fos-
ter, Hillhouse, Howard, J. Mason, Morris, Ogden, 01-
cott, Ross, Sheafe, Tracy, Wells, and White.
Nats — Messrs. Anderson, Baldwin, Breckenridge,
Brown, Cocke, Ellery, T. Foster, Franklin, Jackson,
Logan, 8. T. Mason, Nicholas, Stone, Sumter, and
Wright
There being an equal vote, the Vice President
declared himself in the a£5rmative, and the refer-
ence was carried.
The Vice President said he felt disposed to
accommodate the gentlemen in the expression of
their wishes, the sincerity of which he had no
reason to question, to ameliorate the provisions of
the bill, that it might be rendered more accepta-
ble to the Senate^ He did this under the impres-
sion that their object was sincere. He should,
however, discountenance, by his vote, any at-
tempt, if any such should be made, that mignt, in
an indirect way, go to defeat the bill.
A committee of five members was then balloted
for ; the following is the result of the ballots :
Mr. Baldwin 16, Mr. Colhoun 16, Mr. Day-
ton 15, Mr. Anderson 15, Mr. Morris 15, Mr.
Breckenridge 14, Mr. Brown 14, Mr. Chipman
14, Mr. HiLLHousE 14, Mr. Cocke 11, Mr. Elle-
ry 2, Mr. S. T. Mason 2, Mr. Ross 2.
The five first named constitute the committee.
TucRsnAy, January 28.
The bill to repeal in part the act, entitled ^' An
act regulating foreign coins, and for other purpo-
ses," was read the second, time, and referred to
Messrs. Anderson, Ellery. and Logan, to con-
sider and report thereon.
The Senate resumed the second reading of the
bill for the protection of the commerce and sea-
men of the United States in the Mediterranean
and adjoining seas, together with the motion made
yesterday for expunging the third and fourth sec-
tions; and
Ordered, That the bill be committed to Messrs.
Baldwin, Morris, and SiIeafe, further to consi-
der and report thereon.
The following Message was received from the
Presiuent of the United States:
Gentlemen of the Senate, and
of the House of Repreeentatives .*
I lay before you the accounts of our Indian trading
houses, as rendered up to the first day of January,
.1801, with a report of the Secretary of War thereon,
explaining the effects and the situation of that com-
merce, and the reasons in favor of its further extension.
But it is believed that the act authorizing this trade ex-
pired so long ago as the third of March, 1799. Its re-
vival, therefore, as well as its extension, is submitted
to the consideration of the Legislature.
The act regulating trade and intercourse with the
Indian tribes will also expire on the third day of March
next. While, on the subject of its continuance, it will
be worthy the consideration of the Legislature, whe-
ther the provisions of the law inflicting on Indians in
certain cases the punishment of death by hanging,
might not permit its commutation into death by mili-
tary execution ; the form of the punishment in the
fonner way being peculiarly repugnant to their ideas.
151
HISTORY OF CONGRESS.
152
Senate.
Judiciary System.
February, 1802.
and increasing the obstacles to the surrender of the
criminal.
These people are becoming very sensible of the bane-
ful effects produced on their morals, their health, and
existence, by the abuse of ardent spirits, and some of
them earnestly desire a prohibition of that article from
being carried among them. The Legislature will con-
sider whether the effectuating that desire would not be
in the spirit of benevolence and liberality which they
have hitherto practised towards these our neighbors,
and which has had so happy an effect tow.ards concil-
iating their friendship. It has been found too, in expe-
rience, that the same abuse gives frequent rise to inci-
dents tending much to commit our peace with the
Indians.
It is now become necessary to run and mark the
boundaries between them and us in various parts. The
law last mentioned has authorized this to be done, but
no existing appropriation meets the expense.
Certain papers explanatory of the grounds of this
communication are herewith enclosed.
THOMAS JEFFERSON.
Jakuabt 27, 1802.
THe Message and papers therein referred to
were read, and ordered to lie for consideration.
Mr. Jackson, from the committee to whom was
referred, on the 17ih of December last, the letter
of Simon Willard to the Secretary of the Senate,
relative to a clock executed by the said Willard
for the use of the Senate, together with his ac-
count therefor, made report^ which was read, and
ordered to lie for consideration.
The Vice President laid before the Senate the
memorial of Narsworlhy Hunter; slating that he
is appointed a Representative in Congress of the
Mississippi Territory, and the inconveniences to
which he is subjected from the delay of the bill
extending the privilege of franking letters to the
delegate from tne Mississippi Territory, and mak-
ing provision for his compensation. Whereupon,
the bill was read the second time and referred to
Messrs. Jackson, Tracy, and Baldwin, to con-
sider and report thereon.
Ordered, That the following resolution be re-
ferred to the same committee.
Resolved, That a committee be appointed to bring in
a bill providing for the payment and extending the pri-
vilege of franking to any person who may attend as a
member of the House of Representatives from any dis-
trict under the jurisdiction of the United States.
The Senate resumed the consideration of the
motion made yesterday,
That be, and they are hereby, appointed a com-
mittee to inquire whether any, and, if any, what regu-
lations are proper to be adopted respecting public offi-
cers and agents who shall squander public money offi-
cially entrusted to them, with leave to report by bill,
bills, or otherwise.
And the motion was adopted.
Ordered, That Messrs. Tracy, Nicholas, and
Ogden, be that committee.
Friday, January 29.
A message from the House of Representatives
informed the Senate that the House have consid-
ered the resolutions of the Senate in respect to
Lieutenant Sterret, the officers, and crew of the
United States schooner Enterprize, and do not
concur therein. They have passed two resolu-
tions expressing the sense of Congress on the gal-
lant conduct of Lieutenant Sterret, and the offi-
cers and crew of the United States schooner En-
terprize ; in which they desire the concurrence
of the Senate.
The resolutions were read, and ordered to the
second reading.
Mr. Baldwin, from the committee to whom was
referred, on the 28th instant, the biU for the pro-
tection of the commerce and seamen of the Uni-
tend States in the Mediterranean and adjoining
seas, reported the bill without further amendment ;
and the report was adopted.
Ordered, That this bill pass to the third read-
ing as amended.
Monday, February 1.
The resolutions expressing the sense of Con-
gress on the gallant conduct of Lieutenant Ster-
ret, the officers, and crew of the United States
schooner Enterprize, were read the second time,
and, by unanimous consent, had a third reading.
Resolved, That the Senate do concur therein.
The bill, entitled "An act for the protection of
the commerce and seamen of the tfnited States
in the Mediterranean and adjoining seas," was
read the third time.
On motion, to add to the preamble these words:
"whereby a state of war now exists with the said
Reffency ;" it passed in the negative.
Resolved, Tnaj this bill pass as amended.
A message from the House of Representatives
informed the Senate that the House have passed
a bill authorizing the payment of two thousand
eight hundred dollars to Philip Sloan ; in which
they desire the concurrence of the Senate.
The bill was read the first time, and, by unani-
mous consent, had a second reading.
Ordered, That it be referred to Messrs. Cbip-
MAN, DwiGHT Foster, and Wright, to consider
and report thereon.
Mr. Breckenridge gave notice that he should,
to-morrow, move for the discharge of the com-
mittee, appointed the 27th of January last, to
whom was referred the bill to repeal certain acts
respecting the organization of the Courts of the
United States, and for other purposes, with in-
structions to consider and report the alterations
wnicn may be proper in the Judiciary System of
the United Stales.
Tuesday, February 2.
Mr. Ross presented the memorial of Jared la-
gersoU and others, counsellors, practising in the
courts of Pennsylvania, and in the Circuit Court
of the United States, for the eastern district of
Pennsylvania, submitting their unanimous opin-
ion, deliberately and anxiously formed, that the
circuit court, on the principles of its present or-
ganization, is an important medium for the ad-
ministration of justice, and that the abolition of
153
HISTORY OF CONGRESS.
154
February, 1802.
Judiciary System.
Senate.
the court will probably be attended with great
public iDconvenieDce; and the memorial was read,
and ordered to lie for consideration.
Mr. Ross, on presenting theabove memorial of
the bar of Philadelphia, against the repeal, ob-
served that it was not his intention to embarrass
the motion of the gentleman from Kentucky,* by
moving, in the present stage of the business, its
reference to the committee now proposed to be
dissolved. He offered it, that the Senate, having
before them the opinions of a respectable set of
men. might be properly impressed by them. The
opinions expressed were unanimous, and were
strongly enforced in a letter accompanying the
memorial, addressed to his colleague and himself,
and signed on behalf of the bar, by Messrs. Dallas
and McKean, the one the Attorney of the District,
and the other the Attorney General of Pennsyl-
vania.
A Message from the House of Representatives
informed the Senate that the House have passed
a bill to authorize the settlement of the account of
Samuel Dexter, for his expense in defending
against the suit of Joseph Hodgson, in which they
desire the concurrence of the Senate.
The bill was read, and ordered to the second
reading.
The following Message was received from the
President of the United States :
Gentlemen of the Senate, and
of the House of Representatives :
h now lay before you —
1 . A return of ordnance, arms, and military stores,
the property of the United States.
2. Returns of muskets and bayonets fabricated at
the armories of the United States at Springfield and
Harper's Ferry, and of the expenditures at those places;
and,
3. An* estimate of expenditures which may be neces-
sary for fortifications and barracks for the present year.
Besides the permanent magazines established at
Springfield, West Point, and Harper's Ferry, it is
thought one should be established in some point con-
venient for the States of North Carolina, South Caro-
lina, and Georgia. Such a point will probably be found
near the border of the Carolinas, and some small pro-
vision by the Legislature, preparatory to the establish-
ment, wiU be necessary for the present year.
We find the United States in possession of certain
iron mines and works, in the county of Berkley, in the
State of Virginia, purchased, as ia presumed, on the
idea of establishing works for the fabrication of cannon
and other military articles by the public. Whether
this method of supplying what may be wanted will be
most advisable, or that of purchasing at market, where
competition brings everything to its proper level of price
and quality, is for the Legislature to decide ; and, if
the latter alternative be preferred, jt will rest for their
further consideration in what way the subjects of this
purchase may be best employed or disposed of. The
Attorney General's opinion on the subject of the title
accompanies this.
There are, in various parts of the United States,
* Mr. BBECKSNHiDeB, the preceding day, gave no-
tice that he should this day move to discharge the com-
mittee.
small parcels of land which have been purchased at
different times for cantonments and other military pur-
poses. Several of them are in situations not likely to be
accommodated to future purp<M«8. The loss of the re-
cords prevents a detailed statement of these until they
can be supplied by inquiry. In the mean time, one of
them, containing eighty-eight acres, in the county of
Essex, in New Jersey, purchased in 1799, and sold the
following year to Cornelius Yermule and Andrew Cod-
mas, though its price has been received, cannot be con-
veyed without authority from the Legislature.
I enclose herewith a letter from the Secretary of
War, on the subject of the islands in the lakes and
rivers of our northern boundary, and of certain lands in
the neighborhood of some of our military posts, on
which it may be expedient for the Legislature to make
some provision.
TH. JEFFERSON.
FXBRVART 2, 1802.
The Message was read ; and,
Ordered J That the Message and papers therein
referred to lie' fur consideration.
JUDICIARY SYSTEM.
Mr. Breckenridoe introduced the motion, of
which he gave notice yesterday, that the commit-
tee appointed the 27th of Januaryr last, to whom
was referred the bill to repeal certain acts respect-
ing the organization . of the Courts of the United
States, and for other purposes, with instructions
to consider and report the alteration which may
be proper in the Judiciary System of the United
States, be discharged.
Mr. Breckenrioge. — It will be recollected I
yesterday gave notice, that I should this day move
to discharge the select committee^ to whom the
judiciary bill was last week committed. As there
are some gentlemen now in the Senate who were
nbt present during any part of the discussion, I
deem it proper to say a few words as to its progress,
and as to the real situation in which it now stands.
Early in January this discu.ssion commenced, on
a resolution going to the unqualified repeal of the
judiciary law of last session: After many days'
debate, and at the moment when the question was
about to be put on the resolution, a motion was
made to transform it into a resolution for the
amend men t, i nstead of the repeal of the law. This
was negatived. The resolution was then passed;
a bill brought in, and carried to the second reading,
when another motion was made to recommit it to
a select committee, for the purpose of amending
the system. This was also negatived. The biu
was then ordered to its third reading, and, on the
?[uestion for its passage, another motion was made
or its commitment to a select committee, and
carried b^r the casting vote of the Chair. In this
situation it now rests.
During the whole of the discussion, those who
were in favor of the repeal uniformly argued and
voted against anything like amendment. They
over 'and again avowed it as their opinion, that
they would not consent to go into any amendments
in the judiciary system, until that law was repeal-
ed; that they considered its existence as an insu-
perable bar to all amendments; and that indeed
the only great amendment which they wished for,
155
HISTORY OF CONGRESS.
156
Senate.
Judiciary System,
Febrc/lry, 1802
at thU time, was a repeal of that law, the obnox-
ious tendencies of which were, cancer-like, to be
certainly removed by cntting it out by the roots.
On the other hana, the gentlemen m opposition
contended, that the law was enacted and made
with ^reat deliberation and wisdom ; that it was
essential to the due administration of justice, and
to the peace of the nation ; that it requires no
amendment, that it cannot be amended; for that
even admitting the courts and judges erected by
that law were useless and burdensome, yet Con-
gress have not the power to put down those courts
and judges, because they are in under the Consii-
tution. We are therefore at issue upon the sim-
ple point, shall this law be repealed or not.
From this state of things, what can be expected
from the labors of this committee ? Can they, on
the one hand, forward the views of those who car-
ried to a thira reading a bill to repeal a certain act
which they considered as fundamentally vicious,
by attempting to amend that act ? Or, on the other
hand, can they forward the views of those who
think this law the result of experience and wisdom,
and moreover fastened on the nation by the Con-
stitution, by attempting to make radical'changes in
it ? Can tney, in short, from two such contradic-
tory and opposite opinions, opinions at variance in
principle and not in detail, ever hope to produce
anythmg that will be satisfactory to both sides?
They cannot, and it appears to me impossible that
gentlemen can seriously expect it.
I consider it, Mr. President, as a great contest
on principle, and not on detail. A committee can-
not, and ought not to settle princi{>les. On the
floorof this House alone ought principles, furnish-
ing the ground-work of legislation, to be originated
and settled. Details only are proper from your se-
lect committees. We cannot abandon this ques-
tion. It cannot be suffered to escape us, or be en-
tangled in forms. It must be settled. We will
have no modification of this bill. We must, on
this floor, meet the plain unqualified question of
repeal. And in order that we may be enabled to
do so, I now move you, that the committee to whom
the bill was referred on Wednesday last, be dis-
charged from proceeding further therein. The bill
will then be ready for its passage, and the whole
merits of the subject open to discussion.
Mr. Dayton. — I should not have arisen so soon
in the debate, had the member from Kentucky
been more correct in the information he has given
the Senate. It mast be recollected by the Senate,
contrary to the gentleman's statement, that neither
the first, second, or third motions made on the sub-
ject were the same. The first motion was to re-
vise and amend, instead of repeal the act of the last
session, and was negatived ; the second was for
revising the whole Judiciary system, and connec-
ting therewith a proposition to make provision for
the judges, which had been disapproved of by one
honorable gentleman, and also negatived; the third
so far differed from the second, as to be agreeable
to that honorable member, and was agreed to. A
^ommittee was appointed. He recollected the
anxiety of the friends of the honorable member,
and of the honorable member himself, at not being
one of the committee. He was sorry his anxiety
had produced the extravagant proposition on the
table. Is not the gentleman's ambition satisfied?
He might have been contented with the agency he
already had in this business. He had already de-
livered two speeches that had been listened to with
attention.
Gentlemen had, in the first stages of this business
been permitted to take their own coarse ; while
employed in the holy work of destroying the Con-
stitution, they were suffered to go on, antil their
course was arrested by the reference of the bill
He would ask, if, when the subiect was so referred,
for the purpose of revising the whole Judiciary
system, it was proper, wise, or decent, to dischar^^e
the committee, without their asking their dis-
charge ? He trusted a majority would not be found
to sanction such a step. He trusted one at least
perhaps many, would oe found among those in fa-
vor of a repeal, who would vote against discharging
the committee. He trusted that a re^rd to appear-
ances would save them from sanctioning such a
procedure. The committee had not been inatten-
tive to their duty. No such thing was even suggest-
ed. He trusted, therefore, the proposition would be
rejected, and /hat in its adoption would not be found
a practical comment on the conciliatory recom-
mendation of the President, which had been echoed
by gentlemen on that side of the House.
Mr. Ross. — I have long had the honor of a seti
in this House, and this is the first time I have ever
heard a motion for the discharge of a committee,
unless by a member of the committee itself. And
what is the reason assigned 1 Difference of opin-
ion on principle. With whom existed this differ-
ence ? Surely not with one political side distin-
guished from another. For we have just heard
the opinions of gentlemen of high talents, and of
firm adherence to the same politics as those of the
honorable gentleman, stating that the system is
susceptible of amendment. Are gentlemen pre-
pared to decide instantaneously, without informa-
tion, against opinions so respectable ? Stirdy this
would not be legislating with accustomed caution.
Are gentlemen prepared to say there is no middle
ground ? The wisest men deliberate the longest.
Why then not wait until the committee report ?
Hear what they offer. If bad, reject it, but first
hear. What appearance would this hasty proce-
dure present? One day the Senate are equally
divided, and, by a caution and moderation not easilv
forgotten, the till is referred. Afterwards, thougt
opinion is strengthened on one side, all modifica-
tion whatever is rejected, and the subject is brought
forward for a hasty decision. This Mr. R. did
not think wise. He hoped the House would pro-
ceed cautiously. He hoped they would not pro-
ceed by rapid steps' to a point that might be attend-
ed with serious consequences.
Mr. BRECKENRinoE. — It is said that what I have
done should satisfy a moderate man, and that my
ambition should be satisfied. But what ambition
can I feel ? What prospects of ambition lie b^ore
me, in proposing the repeal of this law ; when, in-
stead of opening prospects of office to me, the effect
is directly the reverse, by destroying those very offi-
157
HISTORY OF CONGRESS.
158
February, 1802.
Judiciary System.
Senate.
ces which I might expect? No. sir, my ambition
on this, as I trust it will be on all other occasions,
is to put down a system fundamentally pernicious.
I have stated the grounds on which I deem it so, and
I am ready to meet the sentiments of my country.
We are now told that we are to suspend this bu-
siness for a short time to stop us from sealing the
death-warrant of the Constitution. Let me tell
these gentlemen, whaterer expressions of terror
they may make, that they pass by my ear like the
wind, and leare not a trace behind. Where is the
precipitation talked of? Did not this discussion
originate on the eighth of January, and did not the
business travel as slow as it could ? Had not gen-
tleman acknowledged it had been fully and delib-
erately discussed? He knew but one subject
which had been so fully discussed. What can this
select committee do? Have gentlemen answered
my arguments on this point? If our opinions on
the constitutionality of the bill are so various and
contradictory, what can we expect from the magic
of d committee but delay ? I am sure, therefore,
gentlemen are not serious, when they profess an
expectation that the report will furnish a plan of
accommodation. The principle must be settled
here.
Mr. Morris begged leave to mention, that the
statement made by the honorable member from
Kentucky as fact, was not fact. Half of it was
true ; the gentleman had said we will listen to no
amendment, we will have a simple repeal. But it
was not true, that this side of tne House had de-
clared the system was nure, and admitted not of
amendment. It had. on the contrary, been acknow-
ledged by every member that had spoken, to be
capable of improvement, and gentlemen had been
called upon to point out the defective parts.
But, says the gentleman from Kentucky, we
will have no modification of the bill. Is that gen-
tleman, then, the keeper of the consciences of naif
the House, and the other half too ? This is a de-
free of presumption I never before heard of— that
e should get up and say that nothing could be
offered which would be approved of, Mr. M. be-
lieved a system could be devised better than either
the old or the new one.
Nay, Mr. M. said, he would appeal to the lan-
guage of the gentleman himself, who had told us
that, after all, we were content to repeal the law
so that we spared the judges. Did not a member
from Connecticut delare that he had voted a^inst
the law last session, believine it then, and still be-
lieving it to be a bad one ? He coula go on citing
every member, that had spoken on his side, to the
same effect.
Mr. Breckenridge. — The gentleman last up
has misunderstood what I have said, and built all
his observations upon it. I appeal to the House,
whether I did not state, in so many words, when
I made the motion to-day, that all the gentlemen
in the opposition had, during the whole course of
the discussion, contended that the courts and
judges could not be put down? I have not said
that all the gentlemen in the opposition were op-
posed to any amendment in the system, and, there-
fore, there was no possibility of the committee's
forming any system to meet the wishes of both
sides 01 the House.
Mr. Cocke spoke in favor of the motion.
Mr. S. T. Mason. — I thought my friend from
Kentucky had stated grounds that would not have
been treated so rudely and abruptly by the gentle-
man from New York, who had so sternly reproach- .
ed him with the charge of presumption. His friend
had stated truly, that the question was repeal or
not repeal . and it was on this question tnat the
House hau so often decided. As to the idea of '
the gentleman from Pennsjrlvania, that to discharge
the committee would be indecent and improper,
he really did not see in what possible light it was
so. Committees were the mere creatures of the
House — even the Committees of the Whole — and
nothing was more common than to discharge
them. This had been often done, and yet no com-
plaint had been before heard of it.
[Mr. Mason here cited an instance in the Sen-
ate, where two members of a committee of three
were prepared to report, when the third member,
who was against the report, on motion, obtained
the discharge of the committee.]
Mr. Anderson said, as he was one of the select
committee, he thought it his duty to inform the
House, that on his making inquiry, he found it
had been determined bv the committee to admit
of no amendments to the system that were not
connected with a provision tor the judges. This
fact would enable the Senate to judge what pros-
pect there was of a report that would be satisfac-
tory to them.
Mr. Dayton contested the fact, and declared,
that though one of the committee, he had no re-
collection of it. Mr. D. then went 'somewhat at
large into the subject of reference.
Mr. Anderson replied.
Mr. Tracy. — In my opinion, few committees
have been raised for more important purposes
than that now proposed to be discharged ; it has
been raised for the purpose of considering and re-
porting such amendments as it would be expedi-
ent to make to the whole Judiciary system or the
United States. They haw sat but a short time;
too short, I conceive, to be prepared to decide on
the objects for which they were appointed, with
sufficient deliberation ana maturity of thought.
What light has been shed upon the subject since
their appointment to alter the course of proceed-
ing then marked out by a Constitutional majority
of the Senate ? If proper then, is it not equally
proper now to aim at a plan of accommodation ?
No new arguments have been urged. Are gen-
tlemen determined at all events not to change
their opinions ? This would be improper. Daily
instances occur — he hoped they always would oc-
cur— and he was sure they would occur in pro-
portion to our desire of imbibing correct opinions,
founded on truth. It will be recollected what
fell from the Chair on that memorable day« that
if the object of gentlemen appeared to be delay,
it would not be permitted ; but when the House
was nicely balanced, it was desirable to give an
opportunity to those who desired to devise a plan
of accommodation.
159
HISTORY OF CONGRESS.
160
Senate.
Judiciary System,
Febbuart, 1802.
Are gentlemen sincerely for making the plan
as unexceptionable as possible? They may have
their wishes gratified by giving us an opportunity
of improving it; and then, if our amendments are
not agreeable to them, they may reject them.
I voted for the act of the last session because I
thought it a ^ood one; I still think it so; but I
declare that, for the good of my country, I will
sacrifice all my pride of opinion, and immolate it
unhesitatingly whenever that good requires. Is
not prudence and caution pre-eminently required
at this time? Does not the state of parties, for
parties there are, require that we should neal,
mstead of irritating their wounds? If in this
body to-day, one party adopts a particular mea-
sure, and to-morrow another party by accident
gains an ascendence and destroys it, what would
be thought of our proceedings? Was this the
dignified mode in which legislation should go on ?
He was sure gentlemen would not in their hearts
say so.
Mr. MoRBis spoke against the motion.
Mr. Baluwin said, that from the subject as it
now stood before the Senate, he was disposed to
vote for the discharge of the committee, and that
the Senate should itself proceed and finish the
business. His reason was, that his own mind was
made up to come to a decision on the main ques-
tion, which had been for a month under discus-
sion; and he had no reason to believe but that
this was the case with the other members of the
Senate. He also thought there could not be ex-
pected a more favorable moment to come to a
fair and proper decision. He hoped he should
never be in any Legislative Assembly in which it
would not be nis wish to have the actual majori-
ty of the Legislature make the laws and decide all
legislative questions. It would siwe him great
pleasure to see every member of tne Senate pres-
ent on this occasion ; next to that was the plea-
sure of having reason to believe that the decision
will now be the same as if the whole number was
present ; he had no doubt but it was generally so
understood. This is the highest evidence that
can be had in any deliberative assembly of what
is their duty, and is the only thingf that can be ex-
pected to give the most general and permanent
satisfaction. He thought it very far from being a
disrespect to the committee, or an unusual mode
of proceeding; when the Senate is not ready to
proceed in a business, they either postpone, com-
mit, or adjourn it ; whenever, in the opinion of
the majority, the cause for the delay is removed,
whether by the labors of the committee or of an
individual member, the House proceed in the busi-
ness, discharge the Committee of the Whole or the
select committee, as is seen in every day's prac-
tice of Parliamentary Assemblies.
In the discussion of this morning, gentlemen
appeared to have, in a great degree, given up
what they had before considered their strong
ground, viz., the superior excellency of the new
ludiciary svstem of last session, now proposed to
be repealed. The argument this morning has
turned on the incompetency of that system, and
the importance of keeping the committee in ses-
sion, to devise another new one, to be composed
out of both the former ones. He must beg leave
to submit to the candor of the gentlemen, wLether,
if that was at present the state of their minds, they
had not better let the old system, which has been
in operation ever since the beginning of this Gov-
ernment, with which the country is 'wcji ac-
quainted, and to which they have been so much
accustomed, be continued in operation till their
minds are more settled, and till more time can
be given to mature and perfect amendments and
alterations, which it seems now to be proposed to
make as to juries, and other important provisions,
which seem now to be in contemplation. He was
very unwilling to distract the country by many
propositions of new judiciary systems, following
each other every session of Cfongress ; he thought
it more clearly evident than before, that it was
best to go on and restore the old system for a year
or two longer at least. Asa member of the com-
mittee, he must declare it as his opinion,. that
there was very little prospect of their devising a
new one, during the remainder of the present ses-
sion, which would be so likely to be acceptable as
the old ; especially as it had never been pretended
that the old one was so extremely vicious and in-
tolerable that it might not be continued a year or
two longer, till experience and reflection could
devise something in which we could be more
unanimous than in anything which has as yet
presented itself.
The debate was further continued by Messrs.
Jackson, S. T. Mason, and Wright, for the mo-
tion, and Mr. Ross against it.
The yeas and nays were then taken, and were—
yeas 16, nays 14, as follows:
Yeas — Messrs. Anderson, Baldwin, Bradley, Breck*
enridge, Brown, Cocke, EUery, T. Foster, Franklin,
Jackson, Logan, 8. T. Mason, Nicholas, Stone, Sum*
ter, and Wright.
Nats — Messrs. Chipman, Colhoun, Dayton, Dwight
Foster, Hillhouse, J. Mason, Morris, Ogden, Olcott,
RosB, Sheafe, Tracy, Wells, and White.
So it was Resolved, That the said committee be
discharged.
WEONEsnAV, February 3.
The bill to authorize the settlement of the ac-
count of Samuel Dexter, for his expense in de-
fending against the suit of Joseph Hodgson, was
read the second time, and referred to Messrs.
Tracy, Dwight Foster, and Brown, to consider
and report thereon.
JUDICIARY SYSTEM,
The Senate resumed the third reading of the
bill to repeal certain acts respecting the organiza-
tion of tne Courts of the United States, and for
other purposes.
On motion by Mr. Ross, to amend the first sec-
tion, by adding thereto, " excepting so much thereof
as relates to the courts there ny established in the
third district;" it was determined in the nega-
tive— yeas 14, nays 16, as follows:
YxA8 — Messrs. Chipman, Dayton, Dwight Foster,
161
HISTORY OF CONGRESS.
162
FEBRtJARY, 1802.
Judiciary System,
Senate .
Hillhouse, Howard, J* Mason, Morris, Ogden, Olcott,
Ross, Sbeafe, Tracy, Wells, and White.
Nats — Messrs. Anderson, Baldwin, Bradley, Breck-
enridge. Brown, Cocke, Ellery, T. Foster, Franklin,
Jackson, Logan, B* T. Mason, Nicholas, Stone, Sumter,
and Wright.
Mr. Bradley thereupon rose. — Mr. President,
I shall Tote for the repeal, because it seems to me
that we have got no use for these courts. The
business was decreasing when they were appointed,
and the old system seems to me to be much better
than the new one. The lawyers of Philadelphia
like the new one best, bat it is for their interest to
have a great many courts. Now, Mr. President,
I look upon the repeal of this law only as one part
of a great system. The system recommended by
our worthy President, is a system of more glory
than our country ever had. This system is to be
completed by lessening all our expenses; by re-
ducing our Military Establishment ; by disciplin-
ing our militia ; by repealing our internal taxes ;
and then, sir, we shall soon pay our debts, and
with a ffreat population of free citizens, we shall
make afi the tyrants of Europe tremble on their
thrones, and in the middle of tneir armies. None
of them will dare to attack this country. This is
a glorious system. Ahd then, Mr. President, I
do not see how this can be so unconstitutional as
the eentleman in the opposition pretend. The
worcfs in the Constitution, ** to hold during good
behayiour," have beeu interpreted very differently
in different States; so I think we cannot apply to
the States to fix a right meaning to these words.
Well, who then shall we apply to ? It seems to me
we ought to apply to that country wbere these
words were first used. Now, sir, in that country,
an act of Parliament can put down any courts or
judges, though they do hold their offices during
good behaviour. I do not see then^ sir, why an
act of Confess should not put down courts and
judges in this country. The judges will still hold
their offices during good behavioar, as much as
they do in England.
Besides, Mr. President, I think if we interpret
the Constitution as these eentlemen propose, it
will amount to a perpetuity for this expensive sys-
tem ; because when a judge dies out, the Presi-
dent is bound to fill up his place ; and even if they
should all happen to die together, he must appoint
sixteen new ones ; so I don't see how we are ever
to get rid of this system; 'tis an absolute perpetu-
ity, unless Qod should be moved, as he was by the
sins of the old world, to destroy us all by a flood.
So, sir, I shall vote for the repeal.
Mr. Ross, — I rezret extremely that by an ab-
sence from the earlier part of this session, I have
lost the interesting information which has been
offered by the able and eloquent discussion of
the question. When the intelligence reached me
that such a bill was proposed. I lost no time in re-
pairing to my seat, that I might, at least, discharge
the melancholy duty of entering my solemn pro-
test against a measure more pernicious in its na-
ture, and more fatal in its consequences, than any
ever proposed in this House.
Having already [in the debate on Mr. Rosa's
7th Con.— 6
motion to except the third circuit from the repeal-
ing law] stated my reasons for preferring the pre 6
ent to the former organization of the circuit courts
of the United States, I shall repeat nothing res-
pecting expediency, but confine myself strictly to
an examination of our Constitutional power to pass
the bill now under consideration. And in doing
this, I do not mean to deny the power of Congress
to add new judges to existing courts; to forbid
the filling of vacancies so as to lessen the number
of judges ; to devolve new duties upon the courts,
or take away old, but unnecessary jurisdiction $
nor will I dispute their authority to abolish a par-
ticular court, where it can be no longer employed
for the purposes of its institution, provided such
abolition be attended with regulations guarding
against the violation of public engagements. AU
these points may be safely conceded, and the con*
cession will at once silence those gentlemen, who
have as erroneously as boldly asserted, that the
law of the 13th February, 1601, embraces a prin-
ciple and furnishes a precedent as broad and as
pernicious as the present.
That law declares that the first vacancy in the
Supreme Court of the United States shall not be
filled up. This would reduce the future number
of that court to five.
How does this affect the independence of the
court, or of any member of it ? Surely there is no
breach of your engagement with any individual,
nor can I discover what gentlemen intended to
condemn.
The same law, in the 24th section, provides that
the district judges of Kentucky and Tennessee shall
be component members of the courts in the sixth
circuit ; and it is now asserted that thereby the
old courts are abolished, the judges divested of
their old commissions, and appointed by the Le-
gislature to fill the new offices vested by that act.
But when the old system is examined, we find
that the judges in those States had the power of
holdiog circuit courts as well as district coiirts
within their respective States. That by the late
law they still remain judges of the circuit courts
as before, and retain all the powers of district
judges. That, as some new duties have been de-
volved upon them, a large additional compensa-
tion for their services has been added to their origi-
nal salaries ; and that they have all their original,
iurisdicrion and more ; they sit in the same court,
told the same office, have the assistance of other
judges; they lose none of their independence, but
gain a great increase of compensation. The law
of 13th February. 1801, then displays the sacred
regard of the last Congress for the Constitutional
permanency of the Judiciar^r, instead of furnishing
a precedent for the Legislative removal of judges
trom office.
By the bill on your table, the Legislature asserts
and exercises the new and dangerous power of
abolbhine all the circuit courts of the United
States, of removing from office aU the judges of
these courts, erection new courts of the same name
and with precisely the same jurisdiction^ to be held
by other persons, who are designated m the bill.
The judges are displaced, not because you will no
163
HISTORY OF CONGRESS.
164
Senate.
Judiciary System.
February, 18Q3
longer employ circuit judges — for you appoint
and employ other circuit judges; the courts are
nominally abolished, not because inferior or circuit
courts of the United States are useless, or the pur-
poses of their institution at an end — for other
courts, of the same name, with the same powers,
and for precisely the same purposes, are enactea
by this very bill. Whatever its title may be, the
bill itself is nothing less than an act of the Legis-
lature removing from office cUl the judges of all
the circuit courts of the United States. It is a de-
claration that those officers hold their offices at
your will and pleasure. That by law you signifv
your preference of other men, and that these shall
serve you no longer.
This is a direct and palpable violation of the
Constitution. After providing for the internal se-
curity of a nation, the great care of every legis-
lator is directed towards the pure and prompt ad-
ministration of justice. It is for the attainment of
this great end, that government is principally in-
stituted, and the people are happy, or miserable,
as the Judiciary is pure, wise, and independent, or
otherwise. The Executive, and Legislative au-
thority, instead of being in their nature paramount,
are rather auxiliary and subservient in promoting
the free and irresistible operations of the judicial
power. In our national Government these three
preat powers are clearly separated, and deposited
in different hands. It is a Grovernment of depart-
ments, each representing and exercising the sove-
reignty for a particular purpose, and each prohib-
ited from enroaching upon or exercising the powers
of another.
By article third, sections one and two, the judi-
cial power is vested in a Supreme Court, and such
inferior courts as Congress may from time to time
establish. The judges of all courts of the United
States are to hold their offices during good beha-
viour, and to receive a compensation, which shall
not be diminished during their continuance in
office.
The provision for their independence, both of
Legislative and Executive power, was wise and
absolutely indispensable. From the Constitution
itself they have a transcendent jurisdiction, not
only between citizen and citizen, but between a
State and citizen, between different States, and
between the United States and the several States.
It would have been preposterous to subject the
courts to those whose acts they are directed to
interpret and control. The laws of Congress or-
ganizing the courts, define the number of judges
m each court, ^x their compensations and desig-
nate the extent of their jurisdiction. But the
tenure of office is not derived from the laws, but
from the Constitution; Congress cannot erect
courts to be held by judges commissioned during
the pleasure of the Executive, or of the Legisla-
ture, or during five or ten years onlv ; such a law
and such a tenure would be clearly unconstitu-
tional*
But it is contended, that although the Consti-
tution prohibits the Executive and Legislature
from displacing a judge directly or by name^ yet
the Legislature may abolish the office, and thereby
indirectly effect the same end. For then there
will be no office in which the jud^e can continue
nor any serJ(rice rendered for which he ou^ht tc
receive a compensation. There is no violation
then of the letter of the Constitution, and the
Legislature are the sole judges of its true spirit.
I answer, that no device, however subtle, will
protect us in producing a forbidden result. An
unlawful end cannot be reached by lawful mean«.
This is a moral and logical truth of the old school
which I believe the new philosophy will find no
process of reasoning to overturn ; and I should be
obliged to any ingenious gentleman for stating a
syllogism which would produce such a coDclusion.
I know well that, by metaphysical abstractions,
you may imperceptioly gain a little and a little
more, until at last the illusion of the fallacy is
scarcely within the compass of detection; but
here, where every step can be so distinctly traced,
the delusion is impossible. You admit that the
dismission of sixteen judges, by name, 'would be
unconstitutional. What difference is there be-
tween this and your bill, which declares that the
circuit courts shall no longer be held by the pres-
ent judges, but by certain other men ? You do
not destroy the office of circuit judge, for you still
retain the circuit courts. You remove the office
from one set of men who now hold it, and gut
it to another set that pleases you better. Then
you contend that this operation, being a removal
of offices from men, is not a removal of men from
office, as if your purpose was not as effectually
attained by inverting the order of the words a^
without it ; you say there shall be a removal, and
yet admit that direct removal by you is unlawful.
Surely so barefaced an evasion, so undisguised
an usurpation of power, can deceive no man who
is not already resolved to be deceived.
The honorable gentleman from. Vermont has
saidj in this debate, that the words, '' holding da-
ring good behaviour." used in the Constitution, bare
been very differently understood in the different
States ; and that the English courts, whose judges
hold their office during good behaviour, may be
abolished by an act of Parliament, which is held
to be omnipotent.
The gentleman ought to recollect that there is
no analogy in this respect between our national
Government and that of Great Britain. There
an act of Parliament can change the constitution.
Here the written Constitution, established by the
people, restrains the Legislature to the exercise of
delegated power, and fixes immutably certain
bounds which it may not pass. If it should rash-
ly exceed the delegated power, our Judiciary,
sworn to support the Constitution, must declare
that the great irrepealable statute made by the
people shall restrain and control the unauthorized
acts of agents who have exceeded the limits of
a special authority.
I could easily produce opinions of hi^h respect-
ability, from many of the States, showing that hj
the v/ords, " during good behaviour," was under-
stood a complete independence of the Legislative
as well as Executive power, but at present I shall
only refer to a case from Virginia, which is direct-
165
HISTORY OF CONGRESS.
166
February, 1802.
Judiciary System.
Senate.
]y in point, and decided by men of ^reat emi-
nence, whose talents and political opinions will
not be questioned by gentlemen who are friends
of this bill. As the case and opinion are printed,
and in the hands of everybody, I merely repeat
that the judges of Virginia, Mr. Pendleton at their
head, did refuse to execute a law of that State as
unconstitutional, and assigned their reasons in
writing, among which are the following :
" The propriety and necessity of the independence
of the judges is evident in reason and the nature of the
office ; since they are to decide between Groyemment
and the people, as well as between contending citizens ;
and if they be dependent on either, corrupt influence
may be apprehended, sacrificing the innocent to popu-
lar prejudice, and subjecting the poor to oppression and
persecution by the rich. And this applies more forci-
bly to exclude a dependence on the Legislature, a branch
of whom in cases of impeachment, is itself a party.
"This principle supposed, the court are led to con-
sider whether the people have secured or departed from
it in their Constitution or form of Government In
that solemn act they discover the people distributing the
Govermental powers into three great branches, Legisla-
tive, Executive, and Judiciary, in order to preserve that
equipoise which they judged necessary to secure their
liberty ; declaring that those powers be kept separate
and distinct from each other, and that no person shall
exercise at the same time an office in more than one of
them. The independence of the two former could not
be admitted, because in them a long continuance in office
might be dangerous to liberty, and therefore they pro-
vided for a change by frequent elections at stated peri-
ods ; but in the last, from the influence of the principle
before observed upon, they declared that the judges
should hold their offices during good behaviour. Their
independence would have been rendered complete by
fixing the quantum of their salaries."
After stating the vast increase of duty, without
a correspondent increase of salary, which they
deemed such an attack on their independence that
it would be inconsistent with a conscientious dis-
charge of duty to pass it over, they say :
" For vain would be the precaution of the founders
of our Government to secure liberty, if the Legislature,
though restrained from changing the tenure of judi-
cial offices, are at liberty to compel a resignation by re-
ducing salaries to a copper, or by making it part of the
official duty to become hewers of wood or drawers of
water."
From which there can be no doubt that in the
opiniop of the "highest lawcharacter? in Virginia,
the words " during good behaviour,'' even without
a provision for compensation, do secure to the
judges a complete independence of the Legislature,
as well as of the Executive power, in the tenure
of their offices ; and should an indirectattempt be
made upon that independence, either by withhold-
ing pecuniary compensation, or by devolving du-
ties t90 burdensome, the judges themselves may
take up the law. and declare it to be void. I shall
only add that the Legislature of Virginia, with
moueration and good sense highly honorable to
themselves, yielded to the judges, and new-mod-
elled their law.
The same gentleman from Vermont has also
complained that all our inferior courts, as well as
the Supreme Court, would, accordinjg to our doc-
trine, be unchangeable and eternal. This position
is altogether incorrect and fanciful : for we admit
that the Legislature may add to. or diminish juris-
diction ; may forbid vacancies to be filled, and do
many other acts contended for. But we deny that
they can remove officers at their pleasure, and put
others ii^ their stead ; that they can vacate the
seats of all our criminal and civil judges, and fill
them again with their own men. In one word,
that they can assume Executive power over the
Judiciary, and destroy and create in the same
statute. The judicial power is in its nature as
permanent and as unchanfeable by the Lesisla-
ture or Executive as the Uonstitution itself, and
when it loses these attributes, we lose all security
for property, for fame, and for life-^we have nothing
left that is worth preservation.
Some gentlemen have said in this debate, that
the Supreme Court is better secured by the Con-
stitution against the Legislature, than the inferior
courts, and have made a grave distinction between
the words " shall" and " may.'' I see no difference
in the security of the judges of the respective
courts. Try tne efficac]^ of the new doctrine upon
the Supreme Court. It is organized by law. The
power which enacted, can repeal the law. We
will remove the office from the judges, not the
judges from the office. At present there are six
judges in that court. There will be a Supreme
Court if we repeal the law as to three. You may
say the three eldest, the three youngest, or the
three who wear wi^s, shall hereafter hold the
court. Nay, the principles of the present bill
would warrant you in enacting that the present
Supreme Court shall be abolished ; and tnat the
Supreme Court shall hereafter be held by the dis-
trict judges, or any given number of them. And
your justification is the same. You have leffis*-
lated respecting the office only, although the fact
will also be that the office is the same, but the offi-
cers are all changed by the new operation of your
law.
By this horrid doctrine. Congress erects itself
into a complete tyranny. All the judges of your
civil and criminal courts hold their offices at the
will of the Legislature. A majority of the two
Houses is in reality the national Judiciary. " Du-
ring good behaviour" means as long as the pre-
vailinff party in Congress choose to continue one
of their own laws. When parties change, the
judges must all go out. What can our citizens,
what can strangers expect from such courts ? If
you pass laws impairing the obligations of con-
tracts, or violating our public faith, or ea^ poet facto
in their operation, will our courts have courage
enough to obey the Constitution and their oaths,
by declaring such acts void 1 If you infringe the
rights of a State, or deny the privileges secured
to it by the Constitution, what remedy, what
hope has the State ? Will the judges dare to re-
sist your law, or refuse to execute it ? If they do,
their doom is certain ; you sweep away their offi-
ces by a law, and appoint others to do their duty ;
or you nominally erect new courts with the same
jurisdiction, and leave the Executive to hunt for
167
HISTORY OF CONGRESS.
168
Senate.
Judiciary System.
February, 1802.
more pliant men. Nay, should the courts and the
Legislature be in session at the same time, and in
the same place, the whole business may. on Legis-
lative whim or passion, be taken out of the hands
of the court who had began to hear it, and given
to men more favorable to the claims of popular
suitors, or the acquittal of favorite criminals. The
Legislature thus becomes a corrupt despotism, un-
der which no wise man would live, and to wnich
no freeman ought to submit.
Instead of an august and venerable tribunal,
seated above the storms and oscillations of faction,
prepared to rescue innocence from the fangs of
the oppressor, to stand in the gap as mediators be-
tween the great officers of Government and the
people, between the National Confederacy and
the individual States ; you have a transient, arti-
ficial body, without a will or understanding of its
own, impelled by your own machinery, and desti-
tute of the celestial fire which should animate and
direct its course. It will be the mimickry and
the mockery of justice. No more will you see in
the administration of justice, those men, whose
acquirements and talents have called them to emi-
nence at the bar. They will never consent to be-
come the tools and victims of factions contending
for mastery in the State. Even mediocrity in the
profession will not leave ease and dignified inde-
pendence for a seat of precarious duration, and
where the hazard of degradation is imminent and
irretrievable. You must resort to the dregs of the
law, to the pests of social life, where you may
find impudence without science, zeal without
judgment, self-sufliciency without moral princi-
ple, and we shall soon see executioners instead of
judges in the sacred seats of justice. When pop-
ular leaders sue before such courts, their adversa-
ries must be manifestly in the wrong, and when
the ruling party accuses, the prisoner at the bar
will never oe found guiltless. Such a state' of
things is certainly deprecated by every honorable
member Qf this House, and yet, in my apprehen-
sion, this fatal measure, if carried through, will
hurry us forward into calamity and misfortune
beyond the faculties of man to foresee or describe.
Let us then stop while we are yet safe, while the
boundaries of our power and our duty are yet vis-
ible ; while we have a Government founded on
opinion, unaided by force and supported by afiec-
tion ; a Government secured by solemn covenant
and compact to abstain froxQ. tne exercise of pro-
hibited power. Upon our observance of this easy
condition hansr the hopes and happiness of the
new world. The day we transgress, we fall from
our high and happy state. Touch not then the
forbidden tree ; the taste may perhaps be sweet,
but the sin is mortal, and from that moment our
Paradise is lost.
Mr. Anoerson. — Mr. President, when the sub-
ject now under consideration was first brought be-
fore the Senate, I did not intend to have taken
any part in the debate. But the alarm which the
gentlemen in the opposition have attempted to ex-
cite, and the impression they have endeavored to
make upon the public mind, impels me to offer a
few reasons in justification of the vote I mean to
give ; and in offering these reasons I will en-
deavor to show, that if this law should not be n-
pealed, it will, from the circumstances under
which it passed, establish a precedent dangerous
to the independence of this body, and subversive
of the true principles of the Constitution. The
gentleman from Pennsylvania, (just sat down.)
as said that we cannot make use of lawful means
to obtain an unlawful end. We do not mean to
attempt it. But I trust that the reverse of the
fentleman's position is equally correct : that this
louse ought not to have made use of ual awful
means to have obtained a lawful end. It was
lawful for Congress to have passed the lai¥ under
consideration. But I cannot admit that either
House were at liberty to make use of unlawful
means to efiect it.
In order to show that such means have been
used in the passage of the law. I must refer to the
admission of a fact by the honorable member
from New York. tLe has conceded, and it was
well understood, that if any amendment had been
made to this law, when in the shape of a bill be-
fore the Senate, and the bill had thereby been re-
turned to the House of Representatives, the voice
of the people would there have been spoken—
their veto would have been given, and the bill
would never have passed into a law. It mast
further be admitted, for your Journals prove it
that several amendments to the bill would have
obtained, had not three of your Senators, who
were appointed judges, in consequence of the pas-
sage^ oi this law, voted against the amendments;
and i be|ieve it will not be denied, that if this law
had not passed, no new judicial offices would then
have b^en created, and that if those three Sena-
tors had not voted upon the bill, the law would
not have passed. It then fairly rollows, that the
votes of those Senators created new offices, which
thereby made places for themselves. I mean not
to impeach the integrity of those gentlemen. But
thus I conceive, that unlawful means have been
used to eflfect the passage of this law. Means, in
my judgment, directly contrary to the true intent
and meaning of the Constitution ; for, by article
first, section sixth, it is declared that no Senator
or Representative shall, during the time for which
he was elected, be appointed to any civil office
under the authority of the United States, which
shall have been created, or the emoluments where-
of shall have been increased during such time. 1
believe, sir. it was intended by this clause, that no
member ot Congress should be capable of giving
any vote that might directly or inoirectlyput him
into office, and yet we have seen three Senators,
under this very law, put into offices by the effect
of their own votes. The honorable member from
New York has told us, that he would wish us to
be as virtuous as Romans ; I, sir, would wish to
see every member of this Senate not only virtu-
ous, but without suspicion. In the passage of this
law, and the appointments made out of this body
in consequence thereof, I conceive the Constitu-
tion to have been dangerously infringed. I there-
fore consider it highly expedient, in order to pre-
serve the sacred principles of our Government, to
169
HISTORY OF CONGRESS.
170
February, 1802.
Judiciary System,
Senatb.
preserve the character and indepeDdeace of the
Senate, that this law, which has thus passed,
should be repealed ; for, if the Senate do not show
their marked disapprobation by its repeal, it will
countenance the practice which has been adopted,
and virtually sanction the right of the President
to select members from this body and place them
in offices which have been created bv their own
votes, and thereby establish a precedent subver-
sive of the true intent and meaning of the Con-
stitution, and destructive of the independence of
the Senate ; for it is a maxim in all Governments,
that what has been once done, and acquiesced in,
from thenceforth becomes a precedent. May we
not then expect that some future President, de-
sirous of carrying some favorite point, will have
recourse to the same expedient to provide for his
warm friends or favorites, and thus, from time to
tim^ by enlisting a sufficient number of members
in his interest, may he not acquire a very danger-
ous ascendency, and thus most injuriously extend
£xecutive patronage — than which nothing is more
dangerous to the principles of a free Government ?
It is laid down by Paley, a very able writer upon
the subject of free Governments, " that patronage
' universally is power — that he who possesses in a
^ sufficient decree the means of gratifying the de-
' sires of mankind after wealth and distinction, by
' whatever checks and forms his authority may be
' limited or disguised, will direct the management
' of public affairs. Whatever be the mechanism
' of the political engine he will guide the motion."
Let us, then, keep the Executive power within its
due Constitutional limits — less, I wish it not to
have, and more, I am unwilling to give.
I will now, Mr. President, offer a few observa-
tions upon the constitutionality of repealing this
law.
The gentlemen opposed to the repeal of this
law, upon Constitutional grounds, have said that
it will destroy the independence of the judges;
and in order to support this position, mucn pains
has been taken, so to blend and consolidate the
whole judicial power as to make the offices of the
judges of the supreme and inferior courts rest upon
the same tenure. This, sir, is highly politic ; for
if the gentlemen could really persuade some of
us that this doctrine is correct, they might pre-
vent the repeal. But. sir, from the most impar-
tial examination whicn I have been able to give
this question, I am of opinion that the Supreme
Court is created, ordained, and established, by the
Constitution, ana mustcontinue to exist; and there
is centred that independence, so much desired by
the gentlemen in the opposition, and absolutelv
necessary, in my opinion, in every free and weil
regulated Government. The Constitution con-
templates the existence of the Supreme Court
from the very first organization of the Govern-
ment; for it not only says, the judicial power of
the United States shall be vested in one Supreme
Court, and such inferior courts as Congress may,
from time to time, ordain and establish; but it
expressly savs, there shall be a Chief Justice, and
that when the President of the United States is
tried, the Chief Justice shall preside. Thus is the
Chief Justice as expressly spoken of in the Con-
stiiution as the President, and I do believe that
we might as well attempt to abolish the office of
President as that of Chief Justice. Assistant jus-
tices are also necessary to fill up the true meaninff
of the Conslitution, for without them there coold
not properly be a Chief Justice ; there might be a
justice, but he could not be a chief, unless there
were subordinate justices. Our Constitution was
formed at a time when parties did not exist — the
framers, no doubt, expected our first Legislature
would organize the Government in all its parts,
in conformity with the true intent and meaning
of the Constitution, according to the principles of
sound reason and common sense. Upon those
principles has our Supreme Court been organized,
and the judges thereof must, in my opinion, con-
tinue to hold their offices independent of the Le-
gislature, and cannot be removed but by impeach-
ment. But, sir, the courts intended to be abolished
by the repeal of this law. having been'created by
Legislative will^ and not oy the Constitution, they
are, in my opinion, in the power of that body who
created tnem, in the same manner as the judges
of the Supreme Court are in the power of the
people^ who created the Constitution, by which
they hold their offices, and from whien they can
be removed by the people whenever they cnoose
to change their Constitution. The power of Con-
gress over the inferior courts having been very
ably elucidated by several gentlemen who have
preceded me, and with whom I accord in opinion,
It being now late. I will make but few more ob-
servations before I conclude. I mean, however,
Mr. President, to extend my views to that country
from which we derive almost our whole system
of jurisprudence, which has uniformly been ac-
knowledged the best in the world, and principally
on account of the great independence of the
judges, and compare the independence of the
judges of England with that of the American
judges. I have said that our supreme judges are
in office by the Constitution, consequently not
removable at the will of the Legislature. The
English judges are differently situated — they hare
no fixed Constitution to protect them, and are
liable to be removed in two ways, either by the
address of Parliament, or by the repeal of the
law — yet have they long been considered as inde-
pendent, because they are no longer removable at
the pleasure of the King. But^ sir, the judges of
our inferior courts are more independent than
those of England, for the judges of our inferior
tribunals cannot be removed from office but by a
repeal of the law which created their offices, or
by impeachment. I have thought proper to take
this concise view, and thus to compare the inde-
pendence of the American judges with those of
England, because from that country have we bor-
rowed our ideas of the necessary and proper in-
dependence of a judge, and on the competrison we
find that under the construction we give to the
Constitution, the American judges are infinitely
more independent than those of England. The
fears, therefore, of the gentlemen in the opposi-
tion, which they have painted in ^o lively c(hoes.
171
HISTORY OF CONGRESS.
172
Senate.
Judiciary System,
February* 1802.
must certainly be unfounded, and believing that
it is both expedient and Constitutional to repeal
the law, I shall give my vote for the pa«=age of
this bill.
Mr. Ogden. — Mr. President, those who may vote
for the repeal of the late judiciary few, must be
prepared to say, in the first place, that the new
system has not advantages over the old, which
will compensate the difference of expense; and
then, secondly, that the Judiciary branch of the
Oovernment is altogether dependent on the Le-
gislative branch.
As I cannot, Mr. President, subscribe to either
the one or the other of these propositions, I feel
it to be a duty, which I owe to my constituents
and myself, to lay before the Senate those senti-
ments which shall actuate my vote on this oc-
casion.
The only reason which I recollect to have been
urged by yie honorable mover of the resolation.
upon which this repealing law is predicated, was,
that there were no benefits in the new system, so
superior to those in the old system, as would jus-
tify the additional expense. I shall, therefore, in
the first place, examine and compare the princi-
ples of these two systems, in this view of the
subject.
Permit me to observe, Mr. President, that, in
my apprehension, the duties of the judges of the
Supreme Court, and the duties of judges of in-
ferior courts, as contemplated by the Constitution,
are distinct duties, and that the old system is ob-
jectionable, because it assigns to the same set of
men, these distinct, and in some measure, incom-
patible offices.
To show that these offices are thus distinct, I
beg leave to refer to the Constitution, which in
article one, section eight, says, *^ Congress shall
have power to constitute tribunals inferior to the
Supreme Court.*^ Thereby plainly contemplat-
ing the one court as distinct from the other.
Again, article three, section one, provides that
" the judicial power of the United States shall be
' vested in one Supreme Court, and in such inferior
' courts as the Congress may, from time to time,
' ordain and establisn. The judges, both of the Su-
^ preme and inferior courts, shall hold their offices,"
&c. From whence the inference is irresistible,
that the office of a judge of the one court was de-
signed^ by the Constitution, to be distinct from
the office of a judge of the other courts ; and that
this conclusion is right, beyond all question, is man-
ifest from the next section of the same article,
which provides, that in two of the cases to which
the judicial power of the United States was ex-
tended, *4he Supreme Court shall have original
jarisdictioiL and in all other cases, the Supreme
Court shall have appellate jurisdiction." Now,
nothing in nature can be more distinct than the
office of the judges to whom an appeal is made,
and the office of the judges from whom an appeal
is made : and yet under, the old system, the func-
tion of these entirely distinct and mcompatible of-
fices were performed by the same persons, who on
one day sat as judges of an inferior court, exercis-
ing original jurisdiction in the cause, and, in a few
days after, as judges of a Supreme Court, exercis-
ing appellate jurisdiction in the self-same suit.
This solid objection against the old system is
remedied by the new.
But it has been urged, that this objection maj
be done away by preventing the same judge who
jvave his opinion, while sitting in an inferior court
From giving an opinion in the same cause, when
sitting in the Supreme Court. I answer, that in
such case, you must always lose one-sixth of the
benefit of this great national tribunal, and fre-
quently much more. It may happen, that in the
same suit one judge may decide an important
question of jurisdiction, upon a plea in abatement
at one inferior court, and another judge the merits
upon a question for a non-suit at the next court
and a third judge upon the form of action upon a
motion in arrest of judgment at a succeeding
court. Now, in cases liKe these, the Supreme
Court would be reduced to one half of its number,
and it might be shown that the most important
questions, affecting the most important interests of
this great community, under the Constitution,
might be finally decided, upon writ of error, hj
two, nay, even one jud^e.
Let me ask, Mr. President, are there not a suffi-
cient number of actors to be found who can, with
ability, fill all the great characters in this great na-
tional drama ? Or are we so poor, that in order
to save a cent a man, we must compel one set of
persons to play two part<i? I hope, sir, this is not
the case, but that the improvement which has
been made in this particular alone, will be found
worthy of the additional expense which it creates.
But, sir, there is another objection to the old
system, now about to be revived, which appears
to my mind to be insurmountable. I mean the
natural impossibility of all the functions both of
judges of tne Supreme Court and inferior courts,
of courts of original and courts of appellate juris-
diction, being performed by the six judges of the
Supreme Court, either witn tolerable convenience
to themselves or to the public.
This position will, I thtnkj be manifest when
we consider the extent of this vast country, and
that the same six judges must hold inferior courts
of original jurisdiction twice in each year, in each
State, (except in Tennessee and Kentucky.) and
that all the judges must assemble twice a year in
this Capitol, to officiate in the Supreme Court in
the exercise of their appellate iurisdiction. so that
the age and ability of a post-boy would be more
necessary qualifications for judges, than that ap-
Eropriate maturity and gravity for which they
ave been selected. Candor must admit, that
to revert to this old system, would be to place
upon our judges a roost intolerable task and burden.
Again, under this old system, courts were fre-
quently lost; a judge sometimes was sick, some-
times the rains descended, the floods rose, the
roads became broken up, so as to render it impos-
sible to hold the inferior courts at the prescribed
times; by this means, suitors, parties, jurors, and
witnesses, were disappointed, and thus was produ-
ced the law's delay; which is the greatest curse
that can attend it.
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HISTORY OF CONGRESS.
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Besides^ you might see one jadge beginning a
cause, another and another deciding, in its inter-
mediate progress, and a different one entirely mak-
ing the rendition of judgment.
These facts, sir, are coinpletely proved by the
memorial from the bar of Pennsylvania, new ly-
in^ on the Secretary's table, and it has been ad-
mitted that if the testimony of the majority of the
bar within the United States could be obtained,
that it would prove the same thing.
That the new system remedies all these incon-
veniences, has not been disputed, and now it is
about to be thrown away to save the community
a paltry cent per man; no, not ao much, not a
cent.
But, sir. it has been objected that the judges of
Gngland ride the circuit of that kingdom, and de-
cide many more causes than come before our
courts. —
Let me ask, whether, because twelve judges,
assisted by as many other men learned in tue law
as they may require, to hold in thdir stead courts
of Nisi Prius, can in England accomplish their
business in an extent of three hundred miles square,
does it follow that in this country, six judges, un-
assisted, can perform as much business over an
extent of country of sixteen hundred miles square?
And yet it has been so argued. Admirable logic
indeed!
It has been further objected, that the State
courts may be resorted to for that business which,
by the Constitution has been assigned to the
Courts of the United States, whereby the addi-
tional expense of the late establishment mayr be
saved. What ! are we so poor that the United
States must thus ask alms from the individual
States, by declining to continue a proper pro-
vision for such courts as may be necessary for
the determination of the causes that may arise un-
der the Constitution and laws of the United
States? We might as well, upon the same prin-
ciple, ask the State Governments to perform for
the United States its Executive and Legislative
duties; and what will this mighty saving be?
the smallest part of a miserable cent apiece. Such
a want of provision of a competent number of
judges on the part of the United States, to afford
prompt and convenient justice, in all cases arising
under our Constitution and laws, is not only, in
my mindj unworthy of this country, but seems
like a denial to our citizens of the benefit of those
stipulations made in their favor when that Con-
stitution was adopted which brought us, and now
binds us together.
It may be here worthy of remark, that if the
State courts are to be resorted to, and the Legis-
lature .should take away appeals from such courts
to the Supreme Court, as they seem authorized to
do by the second section of the third article, which
provides that '*the appellate jurisdiction shail be
^ liable to such exceptions, and such regulations
' as Congress should make;" then it will happen,
that all Constitutional questions between the Gen-
eral Government and State Governments, must
be decided by State tribunals; and everything
thrown back, as far as relates to this subject, to
that state of things which existed under the Old
Confederation.
But, sir, in my apprehension of this subject, the
Legislature were bound to have made provision
for a competent number of national courts of ori-
ginal as well as appellate jurisdiction ; the one to
be filled by inferior, and the other by Supreme
Court judges. When this provision has beea
made, and when it is upon the full tide of success-
ful experiment, is it wise, is it prudent, thus short-
Iv, without the test of experience, to throw away
tnese provisions, for the miserable savings now
contemplated?
It has been, moreover, objected, that the busi-
ness of the national courts has decreased, and that
the same necessity for the new establisnment, as
formerly, does not now exist.
Permit me, sir^ to observe that, while our pojiu-
lation is increasing beyond ail former example,
while our treaties are growing in number, and our
statute book is enlarging, it is a necessary conse-
quence that the business of our courts must in-
crease ; and if business did not increase under the
old system, it is a conclusive proof that that sys-
tem was radically wrong. I admit that it is very
difficult to make a provision exactly commensu-
rate with the public wants; but it is certainly
more safe to have such provision too broad than
too narrow; and as the system must be uniform,
it must be so extensive as to afford a speedy and
convenient administration of justice to such por-
tions of the country as most require it.
The result, Mr. President, of this comparison,
under all these circumstances, clearly is, accord-
ing to my judgment, that the system has such ad-
vantages over the old, as well in its greater pro-
priety as in its perfect practicability and superior
convenience, as will, by many times, outweigh
that trifling additional expense which ought never
have been set up afaiinst it.
But, sir, the gentlemen .on the other side of the
room appear to me, in a great measure, to have
given up this point, and seem ardent to rush, even
without a necessity, to |[ive such a construction
to the Constitution, as will render the Judiciary
entirely dependent on the Legislature ; this opens
a great Constitutional point, to the discussion of
which I approach with trembling.
It appears to me, sir, that the three pillars,
namely, the Legislative, Executive, and Judicial,
upon which our Government stands, are entirely
independent of each other ; that the functionaries
in these three great departments are irresponsible
to each other, and that they equally derive their
official being and existence immediately from the
Constitution itself, and not from any laws which
may, from time to time, become necessary to
bring these great departments into complete ope-
ration.
I say, sir, they are independent of each other,
because there is no dependence or connexion be-
tween them, created by the Constitution ; the first
article whereof, sections one and two, provides ,
for the Legislative, the manner in which they
shall be chosen, and the term of their offices. So
article two, section one, provides in like manner
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HISTORY OF CONGRESS.
176
Senate.
Judiciary System,
February. 18Q2.
for the Executive ; and article three, section one,
makes similar provisions for the Judicial. Now,
sir, the sages wno framed this Constitution would
not have made these branches thus co-equal, co-
ordinate, and independent of each other, if they
had intended that either one might, by a law. be
rendered dependent on either of the others; tney
perfectly knew, that it is as natural in politics as
attraction is in physics, that the greater body must
eventally draw within its vortex every lesser one,
unless balanced and counteracted ; they, there-
fore, instead of creating any dependence of any
one branch upon any one of the others, -which
they would have done if they had so intended,
have expressly provided that the Executive should
continue in office for four years, Senators for six
years. Representatives for two years, and Judges
during good behaviour. How can it be said that
one co-ordinate branch can abridge the time of
the political existence of either of the others?
And who can show that, if the Legislature can
do this in regard to one of the other branches,
why it may not do the same in regard to the
other?
It has been observed, that independent judges
for life may become dangerous, by having a com-
plete control over your laws. I answer, that we
are here not making but acting under the Consti-
tution which has created this independence, and
we are bound not to impair it. But, sir, I believe
that the independence is in perfect conformity
with the genius of the American people, and that
it is dear to them.
Our forefathers came from a land where this
independence existed in the then greatest extent
in the known world. They boasted of it with
pride to their children, as the highest birthright
of a free citizen. They complained incessantly
that here it was not so; that their judges were
not independent, and this very reason, in our De-
claration of Independence, is assigned as one of
the causes of our separation from our mother
country.
All the American Constitutions, in conformity
to this idea, have endeavored to preserve the same
independence of judges, by the most express terms,
and the instrument now under consideration, uses
the most unequivocal language that human wis-
dom can dictate, to secure (as far as it can be se-
cured by paper) the independence of the Judi-
ciary. Suflfer me further to observe, that our
Government is one of checks; that the power
given by the Constitution to the Legislature is
not general, but special ; that it is not omnipotent,
but limited ; and that, therefore, necessarily a
check against it must somewhere exist. Suppose
the Legislature should pass bills of attainder, or
an unconstitutional tax, where can an oppressed
citizen find protection but in a court of justice
firmly^ denying to carry into execution an uncon-
stitutional law ? What power else can protect
the State sovereignties, should the other branches
combine against them ? And let me ask, where
can such power be more safely lodged than in that
branch of the Government, which, holding neither
the sword nor the purse of the nation, cannot have
either the ambition or the means of subverting,
to their own benefit^ the provisions of ourConsii-
tion ? I contend, sir, that by our Constitution,
judges are not only independent, but irresponsi-
ble, except in the mode therein pointed out, which
is by impeachment, and if liable to be put down
in any other way, they will become dependent
and servile creatures. If the proposed law ob-
tains, they will be put down without impeach-
ment, without trial, and for no reason whatever,
except it be, either to save the smallest part of a
miserable farthing, or on account of the great sin
of having been appointed under the former Ad-
ministration. I hope, sir, that such an unworthy
reason, or such vindictive passions, will never op-
erate to produce a measure which will shake and
diminish the confidence which considerate men
have hitherto had in that security, which they
thought they possessed under this Constitution.
The argument most worthy of notice from the
other side of the House, appears to me to be that
which is founded on an idea that the judges
about to be pot down were not created oy the
Constitution, as it is said the judges of the Su-
preme Courts were, but by the Legislature ; and
that as the creature cannot be out of the reach
of the creator, so these judges must be dependent
on the Legislature.
First, I answer, that no sound distinction can
be made between the tenures hy which judges of
the supreme and judges of the inferior courts hold
their offices, according to the Constitution, and it
having been admitted in argument, that the judges
of the^ Supreme Court are not thus liable to be
put down, it follows that judges of the inferior
courts are not thus liable. But, sir, a distinction
has been aimed at ; it has been said, that the won)
shall has been used in reference to the one, and
the word may in reference to the other ; but I
believe the word shall is equally applicable to
both cases. Take the words, ^ the judicial power
shall be vested in one Supreme Court, and in such
inferior courts as Congress may^ from time to
time, establish." Can any one doubt that the
word sh^l is not equally imperative in the cases
of both species of courts, and that the evident
meaning of the Constitution is, that Congress
shall appoint as well inferior court judges as Su-
preme Court judges, and that the word may is
only introduced to take away, in regard to the in-
ferior courts, that limitation which is made in re-
spect to the Supreme Court ? The language then
is, there shall be but one Supreme Court, although
there shall be as many inferior courts as Congress
may establish. But this distinction, in regard to
the tenure by which these respective judges bold
their offices, altogether vanishes from my mind
when I reaa in the Constitution that the judges
both of the supreme and inferior courts shall hold
their offices during good behaviour ? The wit of
man could not have invented more explicit terms.
But it is said, that a law was necessary to bring
into official existence the judges of inferior courts.
I answer, a law was equally necessary to bring
into* official existence judges of the Supreme
Court, and a law for the purpose was actuaJly
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HISTORY OF CONGRESS.
178
February, 1802.
Judiciary System,
Senate.
passed. How, then, can it be .«aid. the one corps i
IS created by the ConstitutioD, and the other by a
law ? The truth is, sir, that no such distinction |
exists as the one which has been set up ; and if !
the present law passes, it will be an irresistible
precedent to any future Legislature who niQy be
di^jposed, by a law, to put down the Supreme
Court judges, and no ingenuity will be able to
point out any solid distinction between the two
cases.
Again, Mr. President, it is evident that the ne-
cessity of having made a law, in order to five
official being to these judges, does not make them
dependent on the Legislature, or prove that they
do not hold their offices under the Constitution ;
because if such reasoning were ^ood, it would
equally prove, that the President Vice President,
Senators, and Representatives, do not hold their
respective offices under the Constitution ; but un-
der those respective laws which have been neces*
sarily passed to bring them into existence ; such
as the laws for the appointment of electors for
election of Senators and Representatives, and for
determining the number ot Representatives by
fixing the ratio. Will any one pretend, that by
repealing the respective laws under which elec-
tions have been nad, and the number of Repre-
sentatives ascertained, that thereby the tenure of
their offices, in respect to the time of duration, as
fixed by the Constitution, can be impaired 1 Per-
mit me to mention one more case: by section
three, of article one, it is provided that new States
may be admitted by Congress into this Union.
Now, laws for this are absolutely necessary, such
la'ws have passed; but, when passed, will any
say that the political existence of these new States
depends on the laws? No, sir, it depends on the
Constitution, and, for this reason, a repeal of such
laws, after admission, cannot annihilate the new
States or affect their independence.
The necessary result of this inquiry is, that the
office of inferior judges is derived from as high a
source — and is equally independent of the Legis-
lature— as that of toe juages of the Supreme
Court, the President, Vice President, Senators,
and Representatives; that the official life and
being of each is derived from the Constitution,
and that the Legislature has been merely the organ
made use of under the Constitution in bringing
them into existence.
Has our Constitution then provided for our cit-
izens this immense security of indfpendent tribu-
nals, and shall the Legislature now render them
dependent on its own will and pleasure? Life, as
well as property, may be at stpke before our courts,
and are they to be filled by independent judges,
who are regardless equally of the smiles or frowns
of men in power, or by the dependents of the
party coming in and going out of office at each
alternate chan^? Violent times have happened
in other countries ; there may be such times here ;
and if our criminal tribunals are then filled by the
miserable minions of power, who can answer for
the consequences? Who can say that blood will
not flow down our streets in torrents ?
I see gentlemen on the other side of the House
are smiling ; but I beg them to recollect that such
things may be brought home to ourselves ; that I
am not putting an extreme case ; what has hap-
pened may happen. We have seen in France a
Constitution universally adopted, and fidelity
sworn to it in the face or Heaven ; we have seen
one independent branch of the Government first
trench upon and then destroy another independent
branch ; we saw then the criminal tribunals filled,
not with independent judges, but, instead thereof,
with numsters and execuiionera, the vile depend-
ents of the National Legislature, who were them-
selves, by means of these very tribunals, under the
control of the infamous Robespierre ; tbese cruel-
ties were succeeded by another Constitution, and
another ; the independence of the National Legis-
lature was, in its turn, trenched upon by the Ex-
ecutive, and finally, all the several branches of
Government swallowed up together by the tran-
saction at St. Cloud. I beg gentlemen to remem-
ber these awful dispensations of Providence: we
are informed by the sure word of prophecy, that
'' the measure we mete unto others shall be meted
unto us again ; and if we sow the wind, we shall
reap the whirlwind."
Bear in mind 1 beseech you, that justice is
evenhanded, and that she may return to our own
lips the bitter ingredients of this same bitter cup.
Recollect that times have been when a Legisla-
ture has been turned out of their hall by armed
soldiers ; nay, stamped out of existence. Let us
not, I pray, set an example which may hereafter
plague us. Let us not be the first independent
branch of the Government, which shall attempt
the independence of another co-equal and co-ordi-
nate branch. Let us follow the maxim of wis-
dom by resisting beginnings.
The gentlemen on the other side of the House
have been peculiarly called tbe friends of the peo-
ple ; remember a friend in need is a friend indeed.
Is there, then, not some one who will step out
from among them to save this tottering branch of
our Government from falling ! Rest assured, it is
dear to our fellow-citizens. Ask them, and every
highminded American will answer at once, '' Save
us from the injustice, the oppression, and the
miseries of dependent tribunals, by preserving to
us, forever, the entire independence of our na-
tional judges."
Mr. Nicholas rose with the Constitution in his
band, but shortly after opening the book, and look-
ing at it, sat down again*
Mr. Breckenridgb*— Mr. President: While
my honorable friend recollects himself, I beg leave
to say a few words in answer to an an argument
wbicn has been much pressed to-day. I did not
intend to rise again on this subject, especially at
so late an hour (about five o'clock) and I promise
to detain the House but a few minutes.
I did not expect, sir, to find the doctrine of the
power of the courts to annul the laws of Con-
fress as unconstitutional, so seriously insisted on.
presume I shall not be out of order in replying
to it. It is said that the difierent departments of
Government are to be checks on each other, and
that the courts are to check the Legislature. If
179
HISTORY OF CONGRESS.
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Senate.
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February, 18(S.
this be true, I would ask where they got that
power, aud who checks the courts when tney vio-
late the Constitution? Would they not, by this
doctrine, have the absolute direction of the Gov-
ernment? To whom are they responsible? But
I deny the power which is so pretended. If it is
derived from the Constitution, I ask gentlemen to
point out the clause which grants it. I can find
no such grant. Is it not extraordinary, that if
this high power was intended, it should nowhere
appear? Is it not truly astonishing that the Con-
stitution, in its abundant care to define the powers
of each department, should have omitted so im-
portant a power as that of the courts to nullify all
the acts of Congress, which, in their opinion,
were contrary to the Constitution ?
Never were such high and transcendent powers
in any Government (much less in one like ours,
composed of powers specially given and defined)
claimed or exercised oy construction only. The
doctrine of constructions, not warranted by the
letter of an instrument, is dangerous in the ex-
treme. Let men once loose upon constructions,
and where will you stop them. Is the astutiaoi
English judges, m discovering the latent mean-
ings of law-makers, meanings not expressed in
the letter of the laws, to be adopted here in the
construction of the Constitution ? Once admit the
doctrine, that judges are to be indulged in these
astute and wire-drawn constructions, to enlarge
their own power, and control that of others, and
I will join gentlemen of the opposition, in declar-
ing that the Constitution is in danger.
To make the Constitution a practical system, this
pretended power of the courts to annul the laws
of Congress cannot possibly exist. My idea of the
subject, in a few words, is. that the Constitution
intended a separation of tne powers vested in the
three great departments, giving to each exclusive
authority on tne subjects committed to it. That
these departments are co-ordinate, to revolve each
within the sphere of their own oroits, without be-
ing responsible for their own motion, and are not
to direct or control the course of others. That
those who made the laws are presumed to have
an equal attachment to, and interest in the Con-
stitution ; are equally bound by oath to support it,
and have an equal right to give a construction to
it. That the construction of one department of
the powers vested in it, is of higher authority than
the construction of any other department ; and
that, in fact, it is competent to that department to
which powers are confided exclusively to decide
upon the proper exercise of those powers: that
therefore the Legislature have the exclusive right
to interpret the Constitution, in what regards the
law-maxing power, and the judges are bound to
execute the laws they make. For the Legislature
would have at least an equal right to annul the
decisions of the courts, founded on their construc-
tion of the Constitution, as the courts would have
to annul the acts of the Legislature, founded on
their construction.
Although, therefore, the courts may take upon
them to ffive decisions which impeach the con-
stitutionality of a law, and thereby, for a time,
obstruct its operations, yet I contend that such a
law is not the less obligatory because the organ
through which it is to be executed has refused 'i\s
aid. A pertinacious adherence of both depart-
ments to their opinions, would soon bring the
question to issue, in whom the sovereign power
of legislation resided, and whose construction of
the law-making power should prevail.
If the courts have a right to examine into, and
decide upon the constitutionality of Irtvs, their
decision ought to be final and effectual. I ask
then, if gentlemen are prepared to admit, that in
case the courts were to declare your revenue.
impost and appropriation laws unconstitutional,
that they would thereby be blotted out of your
statute book, and the operations of Government be
arrested ? It is making, in m^ opinion, a mockery
of the high powers of legislation. I feel humbled
by the doctrine, and enter my protest against ir.
Let gentleman consider well before they insist on
a power in the Judiciary which places the Legisla-
ture at their feet, Let not so humiliating a con-
dition be admitted under an authority of resting
merely on aplication and construction. It will in-
vite a stale of things which we are not justified by
the Constitution m presuming will happen, and
which (should it happen) all men of all parties
must deplore.
Mr. Morris. — I rise to congratulate this House,
and all America, that we have at length got oor
adversaries upon the ground where we can fairly
meet. They have now, though late, reached the
point to which their arguments tended from the
oeginning, Here I knew they must arrive, and
now I ask, if gentlemen are prepared to establish
one consolidated Government over this country?
Sir, if the doctrine they advance prevail, if it be
the true doctrine, there is no longer any Legislatuie
in America but that of the Union.
All the arguments thev have used in this debate
went, of necessity, to that conclusion w^hich is
now happily avowed. The honorable monber
tells us tne Legislature have the supreme and ex-
clusive right to interpret the Constitution, so far
as regards the making of laws; which, being made,
the judges are bound to execute. And he asks
where the judges got their pretended power of de-
ciding on the constitutionality of laws? If it be
in the Constitution (says he) let it be pointed out.
I answer, they derived that power from authority
higher than this Constitution. They derive it
from the constitution of man, from the nature of
things, from the necessary progress of human af-
fairs. When you have enacted & law, when pro-
cess thereon has beep issued, and suit brought, it
becomes eventually necessary that the judges de-
cide on the case betore them, and declare what the
law is. They must, of course, determine whether
that which is produced and relied on, has indeed
the binding force of law. The decision of the Su-
preme Court is, and, of necessity, must be final
This, Sir. is the principle, and tne source of the
right for which we contend. But it is denied, and
the supremacy of the Legislature insisted pn.
Mark, then, I pray, the result. The Constitution
says, no bill of attainder, or es; post facto law shall
181
HISTORY OF CONGRESS.
182
February, 1802.
Judiciary System,
Senate.
be passed, no capitation or other direct tax 'shall
be laid, unless in proportion to the census or enu-
meration to be taxed ; no tax or duty shall be laid
on articles exported from any State ; no preference
shall be given by any regulation of commerce or
revenue to the ports of one State over those of an-
other. Suppose that, notwithstanding these pro-
hibitions, a majoritv of the two Houses should
^w^ith the President) pass such laws. Suppose.
lor instance, that a capitation tax (not warrantea
by the Constitution) or a duty on exports were im-
posed. The citizen refuses to pay; but courts
dependent on the will and pleasure of the Legis-
lature are compelled to enforce the collection.
Shall it be said, that there is an appeal to the Su-
preme Court? Sir, that appeal is subject to such
exceptions and regulations as Congress shall make.
Congress can, therefore, defeat the appeal, and
render final the judgment of inferior tribunals,
subjected to their absolute control. Nay, sir, to
avoid all possible doubt or question, the honora-
ble member last up has told us in so many words,
that the Legislature may decide exclusively on the
Constitution, and that the judges are bouna to exe-
cute the laws which the Legislature enact. Ex-
amine then the state to which we are brought.
If this doctrine be!«ustained,(and it is the fair logi-
cal deduction from the premises laid down) what
possible mode is there to avoid the conclusion that
the moment the Legislature of the Union declare
themselves supreme, they become so? The anal-
ogies so often assumed to the British Parliament,
will then be complete. The sovereignty of Ame-
rica will no Ionp;er reside in the people, but in the
Congress, and tne Constitution is whatever they
choose to make it.
I saw the end to which those arguments went
but I would not throw it out to the people. Gen-
tlemen will however recollect, that early in this
debate I prayed them to pause and consider. 1
mentioned to them without this bar the result of
their doctrine, and yesterday I warned them to
beware of deciding on abstract propositions. But
they insisted on the decision, and they still persist ;
let me then ask, what safety is left for the States ?
Experience under the old Confederation had
shown, that applications made by Congress to large
communities were nugatory, and that to carry on
the business of the National Government, it should
be invested with a right of applying directly to
individuals. But then the danger that it might
swallow up the sovereignty of the States became
evident. To provide against that daoger, the Con-
stitutional doctrine was established, that no power
should be exercised by Congress but such as was
expressly given, or necessarily incident, and as a
farther security, provision was made prohibiting
certain definite acts. But of what avail are such
securities, when your Legislative authority is to be
bounded only by your own discretion ?
While I was far distant from my country, I felt
pain at^ome things which looked like a wish to
wind up the General Government beyond its natu-
ral tone ; for I knew, that if America should be
brought under one coTisolidated Governments it could
not continue to be a Republic, I am attached to
Republican Government, because it appears to
me most favorable to dignity of sentiment and
character. I have had opportunities to make the
comparison. But if a consolidated Government
be established, it cannot long be republican. We
have not the materials to construct even a mild
monarchy. If, therefore, the Stales be destroyed,
we must become the subjects of despotism.
It may perhaps be said that all judges are bound
by oath to support the Constitution ; but I ask,
how is that to be done? Their power over your
laws is denied, and when once it is established that
you and you alone are the legitimate interpreters
of the Constitution, they must be bound by your
construction.
Gentlemen may flatter themselves that the dan-
ger from this quarter is remote or ideal. I know
that so long as peace shall last, the States will be
the general favorites, because tney offer numerous
objects to gratify little ambition ] but no sooner
shall this country be involved in war, than all men
will look up to the National Government for pat-
ronage and protection. Having then the com-
mand of a large military force, it must, under the
construction now set up, become supreme. Re-
member that the old Congress conferred (without
authority) dictatorial power over a large extent of
country, and that it was exercised and submitted
to without opposition. Gentlemen in this House
represent the sovereignty of the States. I now call
upon them. Are they ready to prostrate that sov-
ereignty at the feet of the General Gtovernment?
I, sir, on the part of the Slate of New- York, beg
leave to enter my solemn protest.
Mr. Jackson. — Mr. President, the gentleman
from New- York really frightened me ; for there
is nothing 1 fear so much as a consolidated Grov-
ernment in America. I think as he does, sir,
that the moment it takes place there is an end to
our liberty. But upon reflection, I think that
gentleman has raised an alarm without founda-
tion ; for he say?, sir. that if the Congress should
pass laws injuring t^e States, the inferior courts
would execute them, because they are to be de«
pendent upon the will of Congress. But. sir, if
the gentleman will look at the Constitution, he
will find it is there said, in the second section of
the third article : ' ** In all cases affecting Am-
^ bassadors, other public Ministers and Consuls,
' and those in which a State shall be a party, the
* Supreme Court shall have original jurisdiction.
^ In all the other cases before mentioned, the Su-
^ preme Court shall have appellate jurisdiction
' both as to law and fact." The gentleman there-
fore may dismiss iiis fears, as to what may be done
by the inferior courts, for there is always an ap-
peal to the Supreme Court. I have always con-
sidered the independence of the several States as
the safeguard of our liberties \ they are the sixteen
pillars which support the great arch of our empire,
and I hope that nothing will ever be done to shake
them.
Mr. Dayton. — Mr. President, what has fallen
from the gentleman who has just sat down, re-
minds me of the story of a man who boldly denied
the existence of a Deity, and undertook to prove
183
HISTORY OF CONGRESS.
184
Senate.
Judiciary System,
February. 1S02.
il from Scripture. He opened the sacred vol-
ume, and read therein the words, '' there is no
God." A bystander, who was not disposed to take
such things upon trust, took up the book and re-
cited the whole phrase: " The fool hath said in
his heart there is no God ;" and the position uf
this daring infidel vanished into air. Upon the
same frail foundation rests the answer which has
just been given by the last speaker to the irresis-
tible arguments ot my honorable friend from New
York. It was stated ny my honorable friend most
distioctly, that although it might be pretended that
there was an appeal from the inferior courts to the
Supreme Court, yet, as that appeal was subject to
such exceptions and regulations as Congress should
make, it was in the power of Congress to defeat it
altogether. The gentleman from Georgia has un-
dertaken to prove, from the Constitution, that
my honorable friend was mistaken ; and how has
he done it ? He reads these words, '' In all other
^ cases before mentioned, the Supreme Court shall
^ have appellate jurisdiction, both as to law and
' fact ;" here he stopped, and grounded his ar^u-
rnent on the nart which he read. Had he carried
bis eyes to wnat follows in the same sentence, and
in the next two lines, he would have found that
the clause stands thus : '' In all the other cases be-
^ fore mentioned, the Supreme Court shall have
^ appellate jurisdiction, both as to law and fact,
* with such exceptions and under such regulations
' as the Congress shall make," being precisely what
the gentleman from New York nad stated, and
what the gentleman from Georgia had thought
proper to contradict.
But, sir, the object of the last speaker was not
the single one of making an impression by a par-
tial quotation from the Constitution. He saw the
delicate, dangerous, and alarming ground upon
which the member from Kentucky, who had
been the prime mover of this measure, and the
mouth-piece of his party, had placed the subject,
and he was emulous of diverting us who are in
the opposition, from exhibiting those newly profess-
ed, although secretly harbored, doctrines, m their
true colors. Their deformity and dangerous tend-
ency have, however, been so ably and strikingly dis-
played by the honorable gentleman from New-
York, that they cannot fail to make a serious im-
pression on the public mind. And whatever may
now be said or concealed, it must hereafter be un-
derstood, that upon the success of this measure
depended one ot the most precious provisions of
our Constitution.
The question was then taken on the final pas-
sage of the bill and determined in the afiirmative
—yeas 16, nays 15, as follows.
Yeas — Messrs, Anderson) Baldwin^ Bradleyi Breck-
enridge, Brown, Cocke, Ellcry, T. Foster, Franklin,
Jackson, Logan, S. T. Mason, Nicholas, Stone, Sumter,
and Wright.
Nats — Messrs, OMpman, Colhoun, Dayton, D. Fos-
ter, Hillhouse, Howard, J.Mason, Morris, Ogden, Olcott,
Ross, Sheafe, Tracy, Wells, and White.
So it was Resolved^ That this bill pass, that it
be engrossed, and that the title thereof be "An act
to repeal certain acts respecting the organization
of tlte courts of the United States, and for othe:
purposes."
Thursday, February 4.
A message from the House of Representatives
informed the Senate that the House have passed
a bill for the relief of Lyon Lehman ; in whick
they desire the concurrence of the Senate.
The bill was read, and ordered to the second
reading.
Friday, February 5.
The bill for the relief of Lyon Lehman was read
the second time, and referred to Messrs. Bradley,
Tracy, and Ogden, to consider and report thereon.
Mr. Cai^hodn presented the memorial and pe-
tition of Adam Tunno and others, merchants, of
Charleston, South Carolina, stating that they were
owners ofthe ship South Carolina, Paul Postulate
commander, taken by certain Spanish privateers,
and carried by them to Palma, in Majorca, and
there condemned with her car^o in the year 1799.
under the edict ofthe King oi Spaio ; and pray-
ing the interposition of Government for their re-
lief; and the'petition was read.
Ordered, That it be referred to the Secretary
for the Department of State, to report thereon tc
the Senate.
Mr. Ross presented the memorial of the mer-
chants ofthe city of Philadelphia, signed Willing
and Francis, and others, stating that severe in-
juries have been inflicted on their commerce dur-
ing the late European war, from the predatory
cruisers of the contending Powers; reparation fo^
which has been demanded, and, in some measure,
obtained from Great Britain and Spain ; but in
consequence of the convention lately ratified with
the Government of France^ they are precluded
from recurrence to the justice of that nation for
damages sustained ; and therefore pray redress
from their own Government; and the petition
was read.
Ordered^ That it lie for consideration, and thai
it be printed for the use of the Senate.
Mr. Tracy, from the committee to whom was re-
ferred, on the 2d instant, the bill to authorize the
settlement ofthe account of Samuel Dexter for
his expense in defending against the suit of Joseph
Hodgson, reported it without amendment.
Ordered, That the consideration of this bill be
the order of the day for Tuesday next.
Monday, February 8.
The Senate took into consideration the memo-
rial ofthe merchants of Philadelphia, presented on
the 5th instant.
Ordered, That it be referred to Messrs. Bald-
win, Brown. Breckenridge, Anderson, and
Hillhouse, to consider and report thereon to the
Senate.
Tuesday, February 9.
The Senate resumed the second reading of the
bill to authorize the settlement of the account ot
185
HISTORY OF CONGRESS.
186
February, 1802.
Proceedings.
Senate.
Samuel Dexter, for his expense in defending
against the suit of Joseph Hodgson ; and on the
question to afpree to the third reading of this bill
it passed in the affirmative — yeas 14, nays 14, as
follows :
YxAs— MesBTB. Chipman, Dayton, T. Foster, D.
Foster, Hillhouse, Howard, J. Mason, Morris, Ogden,
Olcott, Ross, Sheafe, Tracy, and Wells.
Nats — ^Messrs. Anderson, Baldwin, Bradley, Breck-
enridge, Brown, Cocke, Colhoun, Ellerv, Franklin,
Jackson, 8. T. Mason, Stone, Sumter, and Wright
The Vice President determined the question
in the affirmative.
So it was Besolved, That this bill pass to the
third reading.
A message from the House of Representatives
informed the Senate that the House have passed
a bill to allow a drawback of duties on goods ex-
ported to New Orleans, and therein to amend the
act to regulate the collection of duties on imports
and tonnage ; in which they desire the concurrence
of the Senate.
The bill was read, and ordered to the second
reading.
A motion was made " That a committee be ap-
pointed to take into consideration the expediency
of continuing in force, and of revbing and amend-
ing the act, entitled ^An act to regulate trade and
intercourse with the Indian tribes, and to preserve
peace on the frontiers."
And it was agreed that this motion lie for con-
sideration. •
Mr. Jackson, from the committee to whom was
referred, on the 22d of January last, the bill fixine
the Military Peace Establishment of the United
States, reported amendments; which were read.
Orc/ered, That they lie for consideration.
Mr. S. T. Mason gave notice that he should,
on Thursday next, ask leave to bring in a bill to
repeal the act, entitled "An act for the punbh-
ment of crimes therein specified."
Wednesday, February 10.
The Vice President laid before the Senate a
letter from Mr. Armstrong, one of the Senators
of the State of New York, resigning his seat in
the Senate.
On motion, it was
Resolvedy That the Vice President be requested
to notify this resignation to the Executive of the
State of New York.
Mr. Jackson, from the committee to whom was
referred, on the 28th of January last, the bill ex-
tending the privilege of franking: letters to the
delegate from the Mississippi Territory, and mak-
ing provision for his compensation ; and to whom
was also referred the motion that a committee be
appointed to brin^ in a bill providinfi[ for the pay-
ment, and extendmg the privilege of frankink to
any person who may attend as a member of the
House of Representatives, from any district un-
der the jurisdiction of the United States, reported
amendments to the bill first mentioned; which
were read and considered.
Ordered, That the further consideration thereof
be postponed until to-morrow.
The Dili to allow a drawback of duties on goods
exported to New Orleans, and therein to amend
the act to regulate the collection of duties on im-
ports and tonnage, was read the second time, and
referred to Messrs. Tract, Brown, and Sheafe,
to consider and report thereon to the Senate.
Mr. Dayton presented the memorial of Abra-
ham D. B. Marentille, stating that he had invent-
ed certain machines for the preservation of per-
sons exposed to drowning oy shipwreck, and
praying a patent therefor; and the petition was
read.
Ordered, That it lie on the table.
The bill to authorize t&e settlement of the ac-
count of Samuel Dexter, for his expense in de-
fending against the suit of Joseph Hodgson, was
read the third time and amended.
Resolved^ That this bill pass as amended.
The motion made yesterday, " That a commit-
tee be appointed to take into consideration the ex-
pediency of continuing in force, and of revising
and amending the act, entitled ^An act to regulate
trade and intercourse with the Indian tribes, and
to preserve peace on the frontiers," was agreed to.
and referred to Messrs. Anderson, Tracy, ana
Brown, to report thereon to the Senate.
Thursday, February 11.
Mr. Bradley, froni the committee to whom was
referred, on the 5th instant, the bill for the relief
of Lyon Lehman, reported an amendment ; which
was read and disagreed to.
Ordered, That tnis bill pass to the third reading.
A message from the House of Representatives
informed the Senate that the House have passed
a bill making certain partial appropriations for the
year one thousand eight hundred and two ; and a
bill to authorize the collection of fees due to the
officers of the respective courts in the State of
Maryland, from persons residing; within the Ter-
ritory of Columbia, by the marshal of the said dis-
trict ; in which bills they desire the concurrence
of the Senate.
The bills were read, and ordered to the second
reading.
On motion, it was
Ordered, That Mr. Bradley be on the com-
mittee to consider the bill authorizing the pay-
ment of two thousand eight hundred dollars to
Philip Sloan, in place of Mr. Cbipman, absent
with leave.
The Senate took into consideration the amend-
ments yesterday reported by the committee to the
bill extending the privilege of franking to the del-
egate from the Mississippi Territory', and making
provision for his compensation ; which report was
amended and adopted, and the bill passed to the
third reading as amended.
Agreeably to notice given yesterday, Mr. S. T.
Mason obtained leave to bring in a bill to repeal
an act, entitled '^An act for the punishment of
certain crimes therein specified ;" and the bill was
read, and ordered to a second reading.
187
HISTORY OF CONGRESS.
18S
Senate.
Proceedings.
February, 1S02.
Friday, February 12.
The bill to authorize the collection of fees due
to the officers of the respective courts of the State
of Maryland, from persons residing within the
Territory of Columbia, by the marshal of the said
district, was read the second time, and referred to
Messrs. Wright, S. T. Mason, and Anderson,
to consider and report thereon.
The bill making certain appropriations for the
year one thousand eight hundred and two was
read the second time, and referred to Messrs. Bald-
win. Tracy, and Ellery, to consider and report
thereon.
The bill to repeal an act, entitled "An act for
the punishment of certain crimes therein specifi-
ed," was read the second time ; and, on tift ques-
tion to agree to the third reading of this bill, it
passed in the negative. So the bill was lost.
The bill for the relief of Lyon Lehman was read
the third time and amended.
On the question to agree to the final passage of
the bill as amended, it was determined in the affir-
mative— yeas 16, nays 8, as follows :
Yeas — Messrs. Anderson, Baldwin, Bradley, Breck-
enridge, Brown, Cocke, Dayton, EUery, T. Foster,
Franklin, Jackson, 8. T. Mason, J. Mason, Stone, Sum-
ter, and Wright.
Nats — Messrs. Dwight Foster, Hillhouse, Howard,
Ogden, Olcott, Ross, Sheafe, and Tracy.
So it was Resolved, That this bill do pass with
an amendment.
A message from the House of Representatives,
informed the Senate that the House have passed
a bill to amend an act entitled ''An act to lay and
collect a direct tax within the United States ;" in
which they desire the concurrence of the Senate.
The bill was read, and ordered to the second
reading.
Mr. S. T. Mason presented the memorial of the
merchants of Alexandria, in the Disirict of Colum-
bia, signed William Hartshorn, and others, stating
that they have sustained heavy losses, and, in some
cases, entire ruin, while in prosecution of fair neu-
tral commerce, from the depredations of French
cruisers during the late European war, and pray-
ing redress; being precluded from a recurrence
to the Government of France by the ratification
of the late convention between tne United States
and the French nation ; and the petition was read.
Ordered, That it be referred to the committee
appointed on the 8th instant, who have under con-
sideration the petition of the merchants of Phila-
delphia on the same subject, to report thereon to
the Senate.
The bill extendine^ the. privilege of franking let-
ters to the delegate trom tne Mississippi Territory,
and making provision for his compensation, was
read the third time, and the title amended.
Resolved, That this bill do pass as amended.
Monday, February 15.
The Vice President laid before the Senate the
report of the Secretary for the Department of State,
on the petition of Adam Tunno and others, to
whom it was referred on the 5th instant ; and the
report was read, and ordered to lie for considera-
tion.
The bill to amend the act, entitled "Ad act tc
lay and collect a direct tax within the Uniteti
States," was read the second time, and referred ic
Messrs. Bradley, Hillhouse, and Nicholas, i:
consider and report thereon.
Mr. Baldwin, from the committee to whom
was referred, on the 12th instant, the bill naakiog
certain partial appropriations for the year one thou-
sand eight hundred and two, reported the bill with-
out amendment.
Ordered, That this bill pass to the third reading.
Mr. Brown presented the petition of John James
Dufour, stating that he had been regularly instruct-
ed in the occupation of a vinedresser, and praying
a ^rant, to himself and associates, of a tract of land
suitable for a vineyard, on the Great Miami river,
on the terms mentioned in the petition ; and the
petition was read, and ordered to lie for considera-
tion.
Ordered, That so much of the Message of the
President of the United States, of 2d February
1802. as refers to certain small parcels of lands
purcnased under the authority of the United States,
tor cantonments and other military purposes, be re-
terred to Messrs. Ogden, Bradley, and Brown, xd
report thereon by bill or otherwise.
Ordered, That so much of the Message of chr
President of the United States, of 2d February, in-
stant, as refers to the report of the Secretary q:
Wai^ on the subject of the islands in the lakes and
rivers of our northern boundary, and of certain
lands in the neighborhood of our military posts,
be committed to Messrs Tracy. Bradley, and
Brown, to consider and report tnereon by bill or
otherwise.
Tuesday February 16.
The bill^ entitled ''An act making certain partial
appropriations for the year one thousand eight hun-
dred and two," was read the third time.
Resolved, That this bill do pass.
Ordered, That the amendments reported by the
committee on the 22d of January last, to the bill
fixing the MUitary PeaceEstablishment of the Uni-
ted States, be the order of the dav for to-morrow.
Ordered, That the petition of John James Da-
four, presented yesterday, be referred to Messrs.
Brown, Baldwin, and Tracy, to consider and te-
port thereon to the Senate.
Mr. Ross presented the memorial of the mer-
chants and traders of the city of Philadelphia,
signed Thomas Fitzsimonsand others, stating their
opinion that the present organization of the Judi-
cial courts of the United States is highly beneficial
in the administration of justice, and that its aboli-
tion will be of much detriment^ and praying that,
at least, it may be preserved so far as respects the
courts of the third circuit ; and the memorial wis
read, and laid on the table.
Wednesday, February 17.
Two Messages were received from the President
of the United States.
189
HISTORY OF CONGRESS.
190
February, 1802.
Proceedings,
Senate
Agreeably to the order of the day, the Senate
took into consideration the amendments reported
by the committee on the 22d of January last, to
the bill fixing the Military Peace Establishment
of the United States ; and, after progress, the Sen-
ate adjourned.
TacRsnAY, February 18.
The Message communicated yesterday from the
President oe tbe United States were read, as
follows:
Gentlemen of the Senate, and
of the House of Representativea .-
I now transmit a statement of the expenses incurred
by the United States in their transactions with the Bar-
bary Powers, and a roll of the persons having office or
employment under the United States, as was proposed
in my Messages of December the 7th and 28d. Neither
is SB perfect as could have been wished; and the latter
not so much so as further time and inquiry may enable
U8 to make it.
The great volume of these communications, and the
delay it would produce to make out a second copy, will,
I trust, be deemed a sufficient reason for sending one
of them to the one House, and the other to the other,
with a request that they may be interchanged for mu-
tual information, rather than subject both to further
delay. TH. JEFFERSON.
FsBmuAMT 16, 1802.
Gentlemen of the Senate, and
of the House of Repreaeniatives :
I lay before both Houses of Congress for their in-
formation the report from the Director of the Mint now
enclosed. TH. JEFFERSON.'
FSBBUART 17, 1802.
The papers referred to in the Messages were
read, and ordered to lie for consideration.
Mr. Ooden, from the committee appointed on
the 15th infftant, reported a bill to authorize the
President of the United States to convey certain
parcels of land therein mentioned ; and the bill
was read, apd ordered to the second reading.
Ordered, That Mr. S. T. Mason be on the com-
mittee to consider the bill to repeal in part the act,
entitled "An act regulating foreign coins, and for
other purposes," in place of Mr. Logan, absent
with leaye.
The Senate resumed the consideration of the
amendments reported by the committee, on the
22d of January last, to the bill fixing the Military
Peace Establishment of the United States.
Ordered, That the further consideration there-
of be postponed until to-morrow.
Friday, February 19.
The bill to authorize the President of the Uni*
ted States to convey certain parcels of land there-
in mentioned, was read the second time ; and it
was agreed that it should lie for consideration.
The following Message was received from the
President of tbe United States :
Gentlemen of the Senate, and
of the House of Representatives :
In a Message of the 2d instant, I enclosed a letter
from tho Secretary of War on the subject of certain (
lands in the neighborhood of our military posts, on
which it might be expedient for the Legislature to
make some provisions. A letter recently receipted from
the Governor of Indiana presents some further views
of the extent to which such provision may be needed,
I therefore now transmit it for the information of Con-
gress. TH. JEFFERSON.
FSBBUART 18, 1802.
The Message and letter therein referred to were
read.
Ordered^ That the letter be referred to Mr.
Tracy and others, the committee appointed on
this subject the 15th instant, to consiaer and re-
port thereon to the Senate.
Mr. Tracy, from the committee to whom was
referred, on the 10th instant, the bill to allow a
drawback of duties on goods exported to New
Orleans ; and therein to amend the act to regulate
the collection of duties on imports and tonnage,
made a report; which was reaa.
Ordered, That this report lie for consideration.
Mr. Bradley communicated sundrv resolutions
of the Legislature of the State or Vermont;
which were read, as follows :
State of Vermont, in General Assembly .•
Resolved, That, in the opinion of the Legislature, the
following amendments to the Constitution of the Uni-
ted States would conduce to the happiness of the citi-
zens thereof, by the establishment of an uniform mode
for the choice of Electors of President and Vice Presi-
dent of the United States and of Representatives to
Congress :
1st. That after the third day of March, in the year one
thousand eight hundred and one, the choice of Electors
of President and Vice President shall be made by the
Legislature of each State, dividing the State into a
number of districts equal to the number of Electors to
be chosen in such State, and by the persons in each
of those districts who shall have the qualifications re-
quisite for Electors of the most numerous branch of the
Legislature of such State choosing one Elector in the
manner which the Legislature thereof shall prescribe ;
which district, when so divided, shall remain unaltera-
ble until a new census of the* United States shall be
obtained.
2d. That the elections of Representatives to serve
after the third day of March, in the year one thousand
eight hundred and three, shall be by dividing each State,
by the Legislature thereof, into a number of districts,
equal to the number of Representatives to which such
State shall be entitled, and by the people within each
of those districts who shall have the qualifications re-
quisite for Electors of the most numerous branch of the
Legislature of such State choosing one Representative
in the manner which the Legislature thereof shall pre-
scribe; which district, when so divided, shall remain un-
alterable until a new census of the United States shall
be obtained.
MoNnAY, February 22.
The Senate transacted no business to-day.
TuEsnAY, February 23-
De Witt Clinton, appointed a Senator by the
Legislature of the State of New York, in the
place of John Armstrong, Esquire, their late Sen-
19 L
HISTORY OF CONGRESS.
192
Senate.
Proceedings^
Febbdary, 1502.
atOFj who has resigned, produced his credentials,
was qualified, and took his seat in the Senate.
The Senate resumed the second reading of the
hill to authorize the President of the United States
to convey certain parcels of land therein men-
tioned.
Ordered^ That this bill pass to a third reading.
Mr. Anuerson, from the committee to whom
was referred on the 28th of January last, the bill
to repeal in part the act, entitled "An act regu-
lating foreign coins, and for other purposes," re-
ported it without amendment.
Wednesday, February 24.
The following Message was received from the
President op the United States :
Gentlemen of the Senate, and
of the House of Representatives .-
I communicate to both Houses of Congress a report
of the Secretaiy of the Treasury on the subject of our
marine hospitals, which appear to require Legislative
attention.
As connected with the same subject, I also enclose
information respecting the situation of our seamen and
boatmen frequenting the port of New Orleans, and
suffering there from sickness and the want of accom-
modation. There is good reason to believe their num-
bers greater than stated in these papers. When we
consider how great a portion of the territory of the Uni-
ted States must communicate' with that port singly ;
and how rapidly that territory is increasing its popu-
lation and productions, it may, perhaps, be thought rea-
sonable to make hospital provisions there of a different
order from those at foreign ports generally.
TH. JEFFERSON.
FXBKUART 24, 1802.
The Message and papers therein referred to
were read and ordered to lie for consideration.
Mr. Morris communicated sundry resolutions
of the Legislature of the State of New York,
which were read, as follows:
Resolved, As the sense of the Legislature, that the
foUowing amendments ought to be incorporated into
the Constitution of the United States, as a neceasary
safeguard against pernicious dinensions in the choice
of a President and Vice President, and as the most eli-
gible mode of obtaining a full and fair expression of
the public will in such election :
1. That the State Legislature shall, from tune to time
divide each State into districts, equal to the whole num-
ber of Senators and Representatives from such State in
the Congress of the United States; and shall direct
the mode of choosing an Elector of President and Vice
President, in each of the said districts, who shall be
chosen by citizens having the qualifications requisite
for Electors of the most numerous branch of the State
Legislature; and that the districts, so to be constituted,
shall consist, as nearly as may be, of contiguous ter-
ritory, and of equal proportion of population, except
where there may be any detached portion of territory,
not of itself sufficient to form a district, which then shall
be annexed to some other portion nearest thereto ; which
districts, when so divided, shall remain unalterable
until a new census of the United States shall be taken.
2. That in all future elections of President and Vice
President, the persons voted for shall be particularly
designated, by declaring which is voted for as President,
and which as Vice President.
The Senate resumed the consideration of iht
amendments reported Dy the committee, on the
22d of January last, to the bill fixing the Mililan-
Peace Establishment of the United States, which
were in part adopted ; and, after progress.
Ordered, That the further consideration thereof
be postponed.
Thursday, February 25.
The Senate resumed the consideration of the
report of the committeee on the bill fixing the
Military Peace Establishment of the United States;
which were in part adopted ; and having agreed
further to amend the bilL the Senate adjourned.
Friday, February 26.
The Senate resumed the consideration of ihe
report of the committee on the bill fixing the Mil-
itary Peace Establishment of the United States;
Ordered, That the bill be recommitted to Messrs.
Bradley, Nicholas, and Jackson, further to con-
sider and report thereon to the Senate.
The following Messages were received from the
Presidemt op the United States :
Gentlemen of the Senate, and
of the House of Representatives :
No occasion having arisen since the last account
rendered by my predecessor of making use of any part
of the moneys heretofore granted to defray the contin-
gent charges of the Government, I now transmit lo
Congress an official statement thereof to the 31st day
of December last, when the whole unexpended balance,
amounting to twenty thousand nine hundred and eleven
dollars and eighty cents, was carried to the credit of the
surplus fund, as provided by law ; and this account'con-
sequently becomes finally dosed.
TH. JEPFERSON.
FsBauAET 35, 1802.
Gentlemen of the Senate^ and
of the House of Representatives: •
Some statements have been lately received of the
causes decided or depending in the courts of the Union
in certain Htates, supplementary or corrective of those
from which was formed the general statement accom-
panying my Message at the opening of the session. I
therefore communicate them to Congress, with a report
of the Secretary of State, noting their effect on the
former statement, and correcting certain errors in ii
which arose partly from inexactitude in some of the
returns, and partly in analysing, adding, and transcrib-
ing them, while hurried in preparing Sie other volum-
inous papers accompanying that Message.
TH. JEFFERSON
Fbbruabt 26, 1802.
The Messages and papers therein referred to were
read, and ordered to lie for consideration.
Mr. Wright, from the committee to whom was
referred, on the 12th instant, the bill to authorize
the collection of fees due to the' officers of the re-
spective courts in the State of Maryland from per-
sons residing within the Territory of Columbia, by
the marshal of the said district, reported amend-
ments; which were read.
Ordered^ That they lie for consideration.
193
HISTORY OF CONGRESS.
194
March, 1802.
Proceedings.
Senate.
Monday, March 1.
Mr. Bradley, from the committee to whom
was referred, on the 15th of February last, the bill
to amend an act, entitled " An act to lay and col-
lect a direct tax within the United States," report-
ed amendments; which were read.
Ordered^ That they lie for consideration.
The bill to authorize the President of the United
States to convey certain parcels of land therein
mentioned, was read the third time, and amended.
Resolved^ That this bill do pass, that it be en-
grossed, and that th€ title thereof be *^ An act to
authorize the President of the United States to
convey certain parcels of land therein mentioned."
The Senate resumed the second reading of the
bill to repeal in part the act, entitled ^ An act re-
gulating foreign coins, and for other purposes."
The following Message was received from the
President op the United States:
Gentlemen of ihe Senate, and
of the House of Repreeentaiives :
I transmit, for the information of Congress, letters
recently received from our Consuls at Gibraltar and
Algiers, presenting the latest view of the state of our
.affairs with the Barbary Powers. The sums due to
the Government of Algiers are now fully paid up ; and
of the gratuity which had been promised to that of
Tunis, and was in a course of preparation, a small
portion only remains still to be finished and delivered.
TH. JEFFERSON.
Masch 1, 1802.
- The Message and papers referred to were read,
and ordered to He for consideration.
The Senate took into consideration the amend-
Ordered, That this bill pass to the third reading;.^ ment reported by the committee, the 19th of Feb-
The Senate took into consideration the amend- ruarv last, on the bill to allow a drawback of du«
ments reported by the committee, on the 26th of
February last, to the bill to authorize the collec-
tion of lees due to the officers of the respective
courts in the State of Maryland, from persons re-
siding^ within the Territory of Columbia, by the
marshal of the said district ; and having in part
agreed thereto,
Orderedy That the further consideration of this
bill be postponed until to-morrow.
Mr. Ulinton presented the petition of Ebenezer
Stevens, merchant, of the city of New York, stat-
ing that Thomas Watson, late master of the sloop
Harriot, which was shipwrecked in the West In-
dies, soon afterwards purchased, with the funds of
the petitioner, a certain American built ship called
the Bellona ; prior to which, and unknown to
the purchaser, the said ship had been employed in
illicit commerce, and, in consequence whereof, on
her arrival at Kew York, she was seized by the
revenue officers of that district, and there con-
demned ; and that the petitioner can pnly obtain
that relief which he prays by a special act of the
Legislature ; and the petition was read.
Ordered, That it be referred to Messrs. Clin-
ton, Brown, and Hillhoube, to considerand re-
port thereon to the Senate.
ruary
ties on goods exported to New Orleans, and therein
to amend the act to regulate the collection of du-
ties on imports and tonnage ; and the amendment
was not aaopted.
Ordered, That the further consideration of this
bill be postponed until to-morrow>.
Mr. Brauley, from the committee to whom
was recommitted, on the 26t)f of February last,
the bill fixing the Military Peace Establishment
of the United States, reported amendments, which
were read.
Ordered, That they lie for consideration.
Tuesday, March 2.
The Vice President laid before the Senate a
report of the Secretary for the Department of
Treasury, with a statement of the emoluments of
the officers employed in the collection of the cus-
toms for the year 1601 ; also, a statement of the
sums paid into the Treasury, by the collectors of
each port, during the same year; which were
read.
Ordered, That they severally lie on file.
The Senate resumed the second reading of the
bill to authorize the collection of fees due to the
ofiicers of the respective courts in the State of
Maryland, from persons residing within the Ter-
ritory of Columbia, by the marshal of the said dis-
trict; and having agreed to a further amendment.
Wednesday, March 3.
Ordered, That the Message of the President of
the United States, of the 1st instant, and the pa-
pers therein referred to. be committed to Messrs.
Tracy, Dayton, and Clinton, to consider and
report thereon to the Senate.
The bilL entitled *'An act to authorize the col-
lection of fees due to the officers of the respective
courts in the State of Maryland, from persons re-
siding within the Territory of Columoia. by the
marshal of the said district," was read tne third
time.
On the question. Shall this bill pass? it was re-
solved in the negative.
So the bill was lost.
The bill, entitled "An act to repeal, in part, the
act. entitled 'An act for regulating foreign coins,
ana for other purposes," was read the third time ;
and a motion was made for an amendment ; and
it was agreed that it should lie for consideration.
The Senate took into consideration the amend-
ments reported by the committee on the 1st in-
stant to the bill to amend an act, entitled ^^An act
to lay and collect a direct tax within the United
States ;" and. having adopted the same.
Ordered, l^hat this bill pass to the third read-
ing as amended.
ing
Thursday, March 4.
Mr. Bradley presented the petitions of Samuel
Ordered, That this bill pass to the third read- Blodget, Thomas Tolman, and Aaron Shepard,
I as amended. collectors of the direct tax within the State of
7th CoN —7
195
HISTORY OF CONGRESS.
196
Senate.
Proceedifige,
March, 1S02.
Vermont, stating that they have incurred, in the
prosecution of that business, certain expenses,
more than the compensation allowed by law; sug-
gesting the expediency of further provisions on
the subject, and praying the interposition of the
Legislature for their relief; and the petitions were
read.
Ordered^ That they be severally referred to
Messrs. Bradley, Clinton, and Hillhouse, to
consider and report thereon to the Senate.
The Senate took into consideration the amend-
ments reported by the committee on the 2d instant
to the bill fixing the Military Peace Establish-
ment of the United States, which were amended
and adopted ; and
Resolved, That this bill pass .to the third read-
ing as amended.
The Senate resumed the second reading of the
bill to allow a drawback of duties on goods ex-
ported to New Orleans, and therein to amend
the act to regulate the collection of duties on im-
ports and tonnage.
And on the question, Shall this bill pass to the
third reading 7 it passed in the negative — yeas 2,
nays 21, as follows:
Yeas — Messrs. Morris &nd Nicholas.
Nats — Messrs. BaMwin, Breckenridge, Brown, Clin-
ton, Dayton, EUery, T. Foster, Dwight Foster, Frank-
lin, Hillhouse, Howard, Jackson, Logan, 8. T. Mason,
J. Mason, Ogden, Olcott, Sumter, Tracy, White, and
Wright.
So the bill was lost.
Monday, March 8.
The Senate resumed the second reading of the
\)i\\ authorizing the payment of two thousand eight
hundred dollars to Philip Sloan.
Resolved, That this bill be postponed until the
next session of Congress.
The Senate resumed the third reading of the bill
entitled "An act to repeol in part the act^ entitled
^An act regulating foreign coins, and tor other
purposes."
Ordered^ That the further consideration of this
bill be postponed until the first Monday in April
next.
The bill entitled "An act to amend an act, en-
titled *An act to lay and collect a direct tax within
the United States,'' was read the third time.
^ Resolved, That this bill do pass as amended.
Ordered, That Mr. Tracy be of the committee
appointed the 1st instant on the petition of Ehe-
nezer Stevens, in place of Mr. Hillhocse, who
has obtained leave of absence.
Friday, March 5.
The bill, entitled "An act fixing the Military
Peace Establishment of the United States," was
read the third time and further amended; and on
the question, Shall this bill pass as amended? it
was determined in the affirmative — yeas 15, nays
10, as follows :
Teas — Messrs. Baldwin, Bradley, Breckenridge,
Brown, Clinton, Colhoun, EUery, T. Foster, Franklin,
Jackson, Logan, 8. T. Mason, Nicholas, Sumter, and
Wright.
Nats — Messrs. Dayton, Dwight Foster, Hillhouse,
Howard, J. Mason, Morris, Ogden, Olcott, Tracy, and
White.
So it was Resolved, That this bill pass as
amended.
Ordered^ That Messrs. Dayton, Morris, and
BALnwiN, be a committee to revise the rules for
conducting business in the Senate, and to report
such alterations and amendments as in their opin-
ion may be necessary.
Mr. Dwight Foster, from the committee to
whom was referred, on the first of February last,
the bill authorizing the payment of two thousand
eight huodred dollars to Philip Sloan, reported the
bill without amendment.
Mr. Tracy reported from the committee to
whom was referred the papers mentioned in the
Message of the President of the United States, of
the Ist instant, that the publication thereof would
be unnecessary.
Tuesday, March 9.
Mr. S. T. Mason presented the petition of Al-
bert Russell and others, statin? that they were re
spectively entitled to quotas ofland in consequence
of their services in the Virginia line of the army,
durinff the Revolutionary war, and having ob-
tained warrants and surveys thereof, they were
casually lost, and cannot be renewed without le-
gislative interference, and therefor praying relief:
and the petition was read.
Ordered, That it be referred to Messrs. Tracy,
Baldwin, and Bradley, to consider and report
thereon.
A messae^e from the House of Representatives
informed the Senate that the House have passed
a bill for the rebuilding the light-house on Gurnet
Point, at the entrance of Plymouth Harbor— for
rebuilding the light -house at the eastern end of
New Castle Island — for erecting a light- house on
Lynde's Point, and for other purposes ; also, a biU
for the. accommodation of persons concerned in
certain fisheries therein mentioned \ and a resola-
tion appointing a joint committee for the purpose
of laying out, agreeably to law, the unexpended
balanceof asum of five thousand dollars, hereto-
fore appropriated to purchase books and maps for
the use of the two Houses of Congress ; in which
bills and resolution they desire the concurrence of
the Senate. They agree to some and disagree to
other amendments ofthe Senate to the bill fixing
the Military Peace Establishment of the United
States.
The bill first mentioned in the message was read,
and, by unanimous consent, had a second reading
Ordered, That it be referred to Messrs. Jack-
son, Dwight Foster, and Olcott, to consider
and report thereon.
The other bill mentioned in the message was
read, and, by unanimous consent, had a second
reading.
Ordered, That it be referred to Messrs. Frank-
lin, Jonathan Mason, and Baldwin, to consider
and report thereon.
197
HISTORY OP CONGRESS.
198
March, 1802.
Proceedings.
Senate.
The resolution of the House of Representatives
for the appointment of a joint committee for the
further purchase of books and maps for the use of
both Houses of Congress, was reaa,and ordered to
lie for consideration.
The amendments disagreed to by the House of
Representatives to the bill fixing the Military
Peace Establishment of the United States were
read, and the consideration thereof postponed un-
til to-morrow.
Mr. Anderson gave notice that he should, to-
morrow, ask leave to bring in a bill to provide for
the more convenient organization of the courts of
the United States within the State of Tennessee.
Wednesday March 10.
A message from the House of Representatives
isformed the Senate that the House agree to the
amendment of the Senate to the bill, entitled "An
act to amend the act, entitled *An act to lay and
collect a direct tax within the United States," ex-
cept to the fourth amendment, to which they dis-
agree. They have passed a bill, entitled "An act
for the relief of Francis Ducnoquet," in which
they desire the concurrence of the Senate.
The bill last mentioned in the message was read,
and, bv unanimous consent, had a second reading.
Oraeredy That it be referred to Messrs. Dwight
Foster, Baldwin, and Brown, to consider and
report thereon.
The Senate took into consideration their amend-
ments disagreed to bv the House of Representa-
tives to the bill, entitled* "An act fixing the Mili-
tary Peace Establishment of the United States."
iiesolved, That they recede from their fourth
and fifth amendnlents, and insist on their fifteenth
amendment to the said bill.
The Senate took into consideration their amend-
ment disagreed to by the House of Representatives
to the bill, entitled " An act to amend an act, en-
titled ^ An act to lay and collect a direct tax with-
in the United States."
Resolved, That they do insist on the said amend-
ment, ask a conference thereon, and that Messrs.
Bradley and Tracy be the managers on the part
of the Senate.
The resolution of the House of Representative^
for the appointment of a joint committee for the
further purchase of books and maps for the use of
both Houses of Confirress, was read the second
time, and ordered to tne third reading.
Agreeably to notice, yesterday ffiven, Mr. An-
derson had leave to brmg in a bill to provide for
the more convenient organization of the cojirts of
the United States within the State of Tennessee,
and the bill was read, and ordered to the second
reading.
Thursday, March 11.
Mr. Dwight Foster, from the committee to
whom was referred, on the 10th instant, the bill,
entitled " An act for the relief of Francis Ducho-
ouet," reported the same without amendment ; and
the bill was ordered to the third reading.
On motion, that it be
"Resohedf That a committee be appointed to inquire
what further and more effectual means ought to be pro-
vided by law for carrying the mail of the United States :"
It was agreed that this motion should lie for
consideration.
Mr. Franklin; from the committee to whom
was referred, on the 9th instant, the bill, entitled
''An act for the accommodation of persons con-
cerned in certain fisheries therein mentioned," re-
ported the bill without amendment, and it was
ordered to the third reading.
The resolution of the House of Representatives
for the appointment of a joint committee for the
further purchase of books and maps for the use of
both Houses of Congress, was read the third tlAie.
Resolved, That the Senate do concur therein,
and that Messrs. Baldwin, Clinton, and Logan,
be the committee on the part of the Senate.
The bill to provide for the more convenient or-
ganization of the courts of the United^ States
within the State of Tennessee, was read 'the sec-
ond time, and referred to Messrs. Anderson,
Nicholas, and Baldwin, to consider and report
thereon.
A message from the House of Representatives
informed the Senate that the House recede from
their disagreement to the fourth amendment of
the Senate to the bill, entitled ''An act to amend
an act, entitled 'An act to lay and coUect a direct
tax within the United States ;" also, from their
disagreement to the fifteenth amendment of the
Senate to the bill, entitled "An act fixing the Mil-
itary Peace Establishment of the United States."
They have passed a bill, entitled "An act for revi-
sing and amending the acts concerning naturali-
zation," in which they desire the concurrence of
the Senate.
The bill last mentioned in the message was
read, and ordered to .the second reading.
Mr. Clinton presented the petition of John
Thomas, and others, aliens, residing in the city of
New York and its vicinity, praying relief under
certain unfavorable prov^fions in the act to estab-
lish an uniform rule of naturalization ; and the
petition was read.
Ordered^ That it lie on the table.
Mr. Anderson, from the committee to whom
the subject was referred on the 10th of February
last, reported a bill to regulate trade and inter-
course with the Indian tribes, and to preserve
peace on the frontiers; and the bill was read, and
ordered to the second reading.
Friday. March 12.
The bill, entitled "An act for the accommoda-
tion of persons concerned in certain fisheries there-
in mentioned," was read the third time.
Resolved, That this .bill do pass.
The hill, entitled "An act for the relief of Fran-
cis Duchoquet," was read the third time, and
passed.
The bill, entitled "An act for revising tind
amending the acts concerning naturalization,"
was read the second time, and referred to Messrs.
199
HISTORY OF CONGRESS.
200
Senate.
Proceedings.
March. 1802.
Clinton, Loga^n, and Sumter, to consider and
report thereon.
The Senate took into consideration the motion
made yesterday " that a committee be appointed
to inquire what further and more effectual means
ought to be provided by law for carrying the mail
of the United States;" and it was agreed that
Messrs. Jackson, Bradley, and Franklin, be the
committee.
A message irom the House of Representatives
informed the Senate that the House have passed
a bill, entitled ''An act for the relief of the Mar-
shals of certain dis ricts therein mentioned," in
which they desire the concurrence of the Senate.
They have resolved to attend the funeral of Nars-
worthy Hunter, late a delegate to Congress from
the Mississippi Territory, to-morrow at twelve
o'clock, and desire the attendance of the Senate.
The bill mentioned in the message was read,
and ordered to a second reading.
Mr. Logan presented the memorial and peti-
tion of the Illinois and Oubache land companies,
si|[ned William Smith and John Shee, the survi-
ving committee on their behalf, praying Congress
to devise some mode for a final investigation and
decision of their claims, and the petition was
read; and, on motion
Resolved^ That this petition be rejected.
Mr. Sumter presented the petition of Bailey
and Walker, and others, mercnants, of Charles-
ton, in the State of South Carolina, stating that
they have sustained considerable losses by irregu-
lar and illegal captures from privateers and other
armed vessels cruising under the flag of the French
Republic, whilst in pursuit of their lawful com-
merce, and that, by the late convention ratified by
the two Qovernments, they are precluded from
recurrence to the justice of the French nation for
redress, and therefore praying relief from the Gov-
ernment of the United States ; and the petition
was read.
Ordered^ That it be referred to the committee
appointed the 8th of February last, on petitions
of a similar nature, to report thereon.
Resolved^ That the Senate will attend the fune-
ral of Narsworthy Hunter, late delegate in the
House of Representatives of the United States,
to-morrow at 12 o'clock.
Monday, March 15.
Mr. Brown, from the committee to whom was
referred, on the 16th of February last, the petition
of John James Dufour, reported a bill to empower
him and bis associates to purchase certain lands ;
and the bill was read.
Ordered^ That it pass to a second reading.
The bill, entided "An act for the relief of the
Marshals of certain districts therein mentioned,"
was read the second time, and referred to Messrs.
S. T. Mason, Cocke, and Logan, to consider and
report thereon.
The bill to regulate trade and intercourse with
the Indian tribes, and to preserve peace on the
frontiers, was read the second time and amended.
Ordered^ That this bill lie for consideration.
Tuesday, March 16.
Mr. Tracy, from the committee appointed the
18th of February last, on the subject, reported a
bill for the better security of public money and
property in the hands of public officers and agents;
which was read, and ordered to a second reading.
The bill to empower John James Dufour and
his associates to purchase certain lands, ^was read
the second time and amended.
Ordered^ That this bill pass to the third read-
ing as amended.
The Senate resumed the second reading of the
bill to regulate trade and intercourse with the In-
dian tribes, and to preserve peace on the frontiers.
Ordered, That it be recommitted to Messrs.
Anderson. Tracy, and ' Brown, the committee
who brougnt in the bill, further to report thereon.
Wednesday, March 17.
Mr. Bradley reported, from the conunittee to
whom were referred, on the 4th instant, the seve-
ral petitions of Samuel Blodget, Thomas Tol-
man, and Aaron Shepard, that the act lately pass-
ed, entitled "An act to amend an act, entitled 'An
act to lay and collect a direct tax within the Unit-
ed Stales," hath made all the Legislative provis-
ion in their judgment at present necessary, and,
therefore, that the several petitioners have leave
to withdraw their petitions; and the report was
adopted.
The bill for the better security of public money
and property in the hands of public officers and
agents, was read the second time.
Ordered^ That the consideration of this bill be
postponed.
The bill to empower John Jtfmes Dufour and
his associates to purchase certain lands, was read
the third time, and the blank in section 3d being
filled with the word six,
Resolved^ That this bill do pass, that it be en-
grossed, and that the title thereof be ^' An act to
empower John James Dufour and his associates
to purchase certain lands."
Thorsday, March 18.
The Senate resumed the second reading of the
'^ill for the better security of public money and
property in the hands of public officers and agents.
Ordered^ That the further consideration of this
bill be postponed until Monday next.
Mr. CoLBODN presented the petition of Alexan-
der Gardner and Thomas Pinctney, of South Ca-
rolina, praying compensation for two negroes,
their property, stated to have been drowned in the
public service ; and the petition was read.
Ordered^ That it be referred to Messrs. Cou-
HOUN, Baldwin, and Brown, to consider and re
port thereon.
Mr. Clinton, from the committee to whom was
referred, on the 12th instant, the bill, entitled '^ An
act for revising and amending the acts concerning
naturalization,"' reported amendments ; which were
read.
Ordered f That they lie for consideration.
201
HISTORY OF CONGRESS.
202
March, 1802.
Proceedings.
Senate.
On motion, that it be
Ruohedj That a committee be appointed to inquire
whether any, and what, amendments are necesaaiy to
be made in the acts to establish the judicial courts of
the United States ; and that the committee have power
to report by bill or otherwise :
It passed in the affirmative — yeas 22, as follows :
Yeas. — Messrs. Anderson, Baldwin, Bradley, Brown,
Clinton, Cocke, Colhoun, Elleiy, T. Foster, Dwight
Foster, Franklin, Jackson, Logan, Morris, Nicholas,
Ogden, Olcott, Ross, Sumter, Tracy, Wells, and White.
Ordered, That Messrs. Anderson, Brown,
Bradley, Nicholas, and Jackson, be the com-
mittee^
Friday, March 19.
Mr. Anderson, from the committee to whom
was recommitted/ on the 16th instant the bill to
r^ulate trade and intercourse with the Indian
tribes, and to preserve peace on the frontiers, re-
ported further amendments; which were read,
and in part adopted, together with further amend-
ments to the said bill ; and. on motion, to insert
these words, section 16th. after the word " remov-
al," " unless upon special cause to be certified by
the commanding officer," it passed in the affirma-
tive— yeas 12, nays 8, as follows :
YxAs — Messrs. Bradley, Dayton, T. Foster, Dwight
Foster, Logan, Morris, Ogden, Olcott, Ross, TWy,
Wells, and White.
Nats — Messrs. Anderson, Baldwin, Clinton, Cocke,
Franklin, Jackson, Nicholas, and Sumter.
Ordered, That this bill pass to the third read-
ing as amended.
A message from the House of Representatives
informed the Senate that the House have passed
' a bill, entitled ^' An act to alter the times of hold-
ing the district court an the district of Maine," in
'which they desire the concurrence of the Senate.
The bill was read.
Ordered, That it pass to the second reading.
The Senate took into consideration the amend-
ments yesterday repprted by the committee on the
bill, entitled "An act for revising and amending
the acts concerning naturalization."
Ordered, That they be the order of the day for
Tuesday next.
Monday, March 22.
The bill to regulate trade and intercourse with
the Indian tribes, and to preserve peace on the
frontiers, was read the third time.
On motion, it was agreed to amend section 14,
and strike out " eighteen" and insert "twelve;"
also, to amend sixteenth section after the word
"than," and strike out " three" and insert "five;"
also, to strike out, after the word ^ removal," the
words " unless upon special causes to be certified
by the commandinf officer ;" and, in the last sec-
tion, to strike out all the words after " operate."
Whereupon, Resolved, That this bill pass, that
it be engrossed, and that the title thereof be "An
act to regulate trade and intercourse with the In-
dian tribes, and preserve peace on the frontiers."
Mr. Tracy, from the committee appointed the
15th of February, on the Message of the President
of the United States of 2d February last, report-
ed, in part, a bill making appropriations for de*
fraying the expense of a negotiation with the Brit-
ish Grovernment to ascertain the boundary line
between the United States and Upper Canada ;
and the bill was read.
Ordered, That it pass to a second reading.
Mr. Jackson, from the committee appointed the
9th instant, on the bill for the rebuilding of the
liffht-house on Gurnet Point, at the entrance of
Plymouth harbor, and for other purposes, reported
amendments; which were read.
Ordered, That they lie foi^tonsideration.
The bill to alter the time of holding the district
court in the district of Maine was read the second
time, and referred to the committee appointed the
18ih instant, on the subject of the juoicial courts,
to consider and report thereon.
Mr. Bradley notified the Senate that to-mor-
row he should ask leave to bring in a bill supple-
mentary to the act, entitled "An act for the en-
couragement of learning, by securing the copies
of maps, charts, and booxs, to the authors and pro-
prietors of such copies, during the times therein
mentioned."
Tuesday, March 23.
The Senate took into consideration the amend-
ments reported yesterday to the bill for rebuilding
the light-house on Gurnet Point, at the entrance
of Plymouth harbor, and for other purposes ; and
having adopted them, together with further amend-
ments to the bill.
Ordered, That it pass to the third reading.
A message from the House of Representatives
informed to the Senate that the House have passed
a bill, entitled "An act to repeal the internal taxes."
in which they desire the concurrence of the Senate.
The bill was read and ordered to the second
reading.
The Senate resumed the second reading of the
bill for the better security of public money and
property in the hands of public officers and agents ;
and having agreed to sundry amendments,
Ordered That the bill be recommitted to Messrs.
Tracy, Nicholas, and Ooden, the committee
who brought it in, further to consider and report
thereon.
Wednesday. March 24.
Mr. LooAN presented the petition of John Hew-
son and others, calico printers, in the city of Phil-
adelphia and its vicinity, praying Legislative en-
couragement in the prosecution of that business ;
and the petition was read and ordered to lie on the
table.
Asrreeably to notice given on the 22d instant,
Mr. Bradley had leave to bring in a bill supple-
mentary to the act| entitled '*An act for the encour- •
agement of leammg, by securing the copies aC
maps, charts, and books, to the authors and pro-
prietors of such copies, during the time therein
203
HISTORY OF CONGRESS.
204
Senate.
Proceedings,
March, 1802.
mentioned ;" and the bill was read, and ordered to
the second reading.
The bill, entitled "An act to repeal the internal
taxes," was read the second time, and referred to
Messrs. Baldwin. Calhoun, Franklin, Cocke,
and Clinton, to consider and report thereon.
The bill for rebuilding the light house on Gur-
net Point, at the entrance of Plymouth harbor,
and for otner purposes, was read the third time.
Orderedj That the further consideration of this
bill be postponed until to-morrow.
The Senate resumed the consideration of the
amendments reported by the committee on the
18th instant, to the bill for revising and amending
the acts concerning naturalization.
Ordered, That the further consideration thereof
be postponed until to-morrow.
A message from the House of Representatives
informed the Senate that the House have passed
a bill making an appropriation for defraying the
expenses which may arise from carrying into effect
the convention made between the United States
and the French Republic ; also, a resolution au-
thorizing the President of the Senate and the
Speaker ofthe House of Representatives to adjourn
their respective Houses on the second Monday in
April next; in which bill and resolution, respective-
ly, they desire the concurrence ofthe Senate.
The bill last mentioned was read, and ordered
to the second reading.
The resolution respecting an adjournment of (he
two Houses of Congress on the second Monday
in April next was read and considered ; and the
further consideration thereof postponed until the
ninth day of April next.
Tbursdat, March 25.
The bill making appropriations for defraying
the expense of a negotiation with the British Gov-
ernment to ascertain the boundary line between
the United States and Upper Canada, was read
the second time, and ordered to a third reading.
The bill supplementary to the act, entitled '^An
act for the encouragement of learning, by securing
the copies of maps, charts, and books, to the au-
thors and i)roprietors of such copies, during the
times therein mentioned," was read the second
time, and referred to Messrs. Bradley, Morris,
and Tracy, to consider and report thereon.
The Senate resumed the third reading of the
bill, entitled "An act for the rebuilding the light-
house on Gurnet Point, at the entrance of Ply-
mouth harbor 3 for rebuilding the light-house at
the eastern end of New Castle Island ; for erecting
a light-house on Lynde's Point ; and for other pur-
poses ;" which was further amended by adding
these words to the amendment of the fifth section,
after the word "dollars" in the first instance, "for
making the surveys," and by filling the blank
therein with the words " ten thousand ;" also, the
blank in the new section adopted, with the words
" thirty thousand ;" and by amending the title to be
read as follows : "An act authorizing the erection
of certain light-houses, and for other purposes."
Besolved, That this bill do pass as amended.
The bill making appropriations for defraying
the expenses which may ariso from carrying: into
effect the convention made between the United
States and the French Republic, was read the
second time, and referred to Messrs. Nicholas.
Baldwwin, and Anderson, to consider and re-
port thereon.
Ordered, That Mr. Tracy be on the committee
to whom was referred, on the 8th of February
last, the memorials of the merchants T)f the cities
of Philadelphia, Alexandria, and Charleston, in
place of Mr. Hillhouse, absent with leave.
The Senate resumed the consideration of the
amendments to the bill for revising and amending
the acts concerning naturalization ; which were
in part adopted; and
Ordered, That the bill be recommitted to Messrs.
Clinton, Logan, and Sumter, the committee
originally appointed on the bill, further to con-
sider and report thereon.
Mr. Tracy, from the committee to whom was
recommitted, on the 23d instant, the bill for the
better security of public money and property in
the hands of public officers and agents, reported
further amendments i which were read.
Ordered, That they lie for consideration.
FRinAY, March 26.
Mr. Balowin, fronj the committee to whom
was referred on the 24th instant, the bill entitled
"An act to repeal the internal taxes, reported
amendments ; which were read.
Ordered, Thai they lie for consideration.
The bill making appropriations for defraying
the expense of a negotiation with the British
Government to ascertain the boundary line be-
tween the United States and Upper Canada, was
read the third time ; and after filling the blank
with the words ten thousand,
Resolved, That this bill do pass, that it be en-
grossed, and that the title thereof be "An act
making appropriations for defraying the expense
of a nejgotiation with the British Government to
ascertain the boundary line between the United
States and Upper Canada."
Mr. Clinton, from the committee to whom was
recommitted, on the 25th instant, the bill for revi-
sing and amending the acts concerning naturali-
zation, reported further amendments ; which were
read.
Ordered, That they lie for consideration.
The Senate took into consideration the amend-
ments reported by the committee, on the 25th in-
stant, to the bill for the better security of public
money and property in the lands of public ofiicers
and agents; which were further amended and
agreed to.
Ordered, That [this bill pass to the third read-
ing as amended.
. Mr. Nicholas, from the committee to whom
was referred, on the 29th instant, a bill i9aking.
appropriations for defraying the expenses which
naay arise from carrying into effect the conven-
tion between the United States and the French
I Republic, reported it without amendment.
205
HISTORY OF CONGRESS.
206
March, 1802.
Proceedings.
Senate.
Ordered, That the further consideration of this
bill be postponed to Monday next.
Mr. Anderson, from the committee to whom
the subject was referred on the 18th instant, re-
ported a bill to provide for the more convenient
organization of tne courts of the United States;
which was read.
Ordered, That this bill pass to a second reading.
A message from the House of Representatives,
by Mr. BeckleV, their Clerk —
The House of Representatives have passed a
bill to revive and continue in force an act, enti-
tled '' An act to augment the salaries of the offi-
cers therein mentioned," passed the second day of
March^ one thousand seven hundred and ninety-
nine ; m which they desire the concurrence of the
Senate. They have directed me to bring to the
Senate a statement communicated to the House
of Representatives by the President of the United
States, with his Message of the 17th ultimo ; apd
to ask of the Senate, in exchange therefor, the roll
of the persons having office or employment under
the United States, which was communicated to
them with a Message of the same date.
The bill last mentioned was read, and ordered
to the second reading.
Ordered, That the Secretary do carry to the
House of Representatives the roll of the persons
having office or employment under the United
States, as requested in the above recited message.
Saturday, March 27.
The bill to revive and continue in force an act,
entitled *^ An act to augment the salaries of the
officers therein mentioned," passed the second day
of March, one thousand seven hundred and nine-
ty-nine, was read the second time.
A message from the House of Representatives
informed the Senate that the House have passed
a bill in addition to an act, entitled " An act in ad-
dition to an act regulating the grants of land ap-
propriated for military services, and for the Soci-
ety of United Brethren for propas^ating the Gos-
pel among the heathen ;" in which they desire the
concurrence of the Senate.
The bill was read, and ordered to a second read-
ing.
The Senate took into consideration the amend-
ments yesterday reported by the committee to the
bill to repeal the internal taxes ; and the amend-
ments were in part adopted.
On the question. Will the Senate adopt that part
of the report of the committee which goes to strike
out th^ eighth section of the bill?
It passed in the negative — yeas 8, nays 17, as
follows :
YxAs — MesBra. Baldwin, Breckenri^ge, Clinton,
Cocke, Colhoun, Franklin, Jackson, and Sumter.
Nats — Mestrs. Anderson, Bradley, Dayton, Ellery,
T. Foster, Dwight Foster, Howard, Logan, 8. T. Ma-
son, Morris, Nicholas, Ogden, Olcott, Ross, Tracy,
Wells, and White.
On motion to amend the 8th section, to be read
as follows :
And be it further enacttd. That all persons who
shall, on or before the 30th day of June next, have any
blank vellum, parchment, or paper, which has been
stamped by the Superintendent of Stamps, and connter
stamped by the Commissioner of the Rei^nue, and on
which a duty has been paid to the use of Government,
shall be entitled to receive from such Collector or Col^
lectors of the Customs, or other revenue officers in the
respective States or districts, as may be designated for
that purpose by the Secretary of die Treasury, the
value of the said stamps, after deducting in all cases
seventeen and a half per cent. ; and that the said offi-^
cers are hereby authorized to pay the same : Prooidedy.
That the said blank vellum, parchment, or paper, be
5 resented within four months after the 30th day of
une next : ,
A motion was made to strike out " seventeen''
and insert "seven ;" which passed in the affirma-
tive— yeas 21, nays 2, as follows ;
YzAS — Messrs. Bradley, Breckenridge, Clinton,
Cocke, Dayton, Ellery, T. Foster, Dwight Foster,
Franklin, Howard, Jackson, 8. T. Mason, Morris,
Nicholas, Ogden, Olcott, Ross, Sumter, Tracy, Wells,
and White.
Nats — Messrs. Baldwin, and Colhoun.
Monday, March 29.
Mr. Bradley, from the committee to whom
was referred, on the 25th instant, the bill supple-
mentary to the act. entitled " An act for the en-
couragement of learning, by securing the copies
of maps, charts, and books, to the authors and pro-
*prietors of sucn copies, during the time* therein
mentioned," re ported amendments to the said bill,
and further, that the committee are of opinion
that any additional provisions in the act to pro-
mote the progress ot useful arts are unnecessary.
The Senate resumed the consideration of the
bill to repeal the internal tazes^ and the amend-
ments reported by the committee were in part
adopted, together with further amendment.
Ordered^ That the bill pass to the third reading
as amended.
The Senate resumed the second reading of the
bill making an appropriation for defraying the ex-
penses which may arise for carrying into effect
the convention made between the United States
and the French Republic.
Ordered^ That this bill pass to a third reading.
A message from the House of Representatives
informed the Senate that the House have passed
a bill making a partial appropriation for the sup-
port of Government, during the year 1802, m
which they desire the concurrence of the Senate.
The bill mentioned in the said message was
read, and, by unanimous consent, had a second
reading.
Ordered, That it be referred to Messrs. Nicho-
las, Tracy, and Baldwin, to consider and report
thereon.
The bill for the better security of public money
and property in the hands of public officers and
agents, was read the third time and amended, by
striking out the third section, after the words *^ so
much" the words " and no more, as near as may
be." And in the same section, after the word
"therefore," the words **as may be necessary,"
207
HISTORY OF CONGRESS.
208
Senate.
Proceedings.
March, 1802.
and section fourth, after the word "given," by ex-
punging the word "public;" and
On the question, Shall this bill pass as amend-
€d 1 it was determined in the affirmative — yeas
24, nays 2, as follows :
YsA8 — Messrs. Anderson, Baldwin, Breckenridge,
Clinton, Cocke, Colhoun, Dayton, Ellery, T. Foster,
Dwight Foster, Franklin, Howard, Logan, S. T. Ma-
«ony J. Mason, Morris, Nicholas, Ogden, Olcott, Ross,
Sumter, Tracy, Wells, and White.
Nats — Messrs. Bradley and Jackson.
So it was Resolved, That this bill pass, that it
be engrossed, and that the title thereof be "An act
for the better security of public money and prop-
erty in the hands of public officers and agents."
The following Message was received from the
President of the United States :
Oentlemen of the Senatey and
of the House of Representatives :
The Secretary of State, charged with the civil afiairs
of the several territories of the United States, has re-
ceived from the Marshal of Columbia a statement of
the condition, unavoidably distressing, of the persons
committed to his custody on civil or criminal process,
and the urgency for some Legislative provisions for
their relief. There are other important cases wherein
the laws of the adjoining States, under which the ter-
ritory is placed, though adapted to the purposes of those
States, are insufficient for those of the territory, from
the dissimilar or defective organization of its authori-
ties. The letter and statement of the Marshal, and the
disquieting state of the territory, generally, are now
submitted to the wisdom and consideration of the Le-
gislature. TH. JEFFERSON.
Mabch 29, 1802.
The Message and papers therein referred to
were read, and committed to Messrs. Morris, S.
T. Mason, and Howard, to consider and report
thereon.
A message from the House of Representatives
informed the Senate that the House have passed
a bill for the relief of Isaac Zane; also, a bill to
amend an act, entitled " An act to retain a further
sum on drawbacks for the expenses incident to
the allowance and payment thereof, and in lieu
of stamp duties on debentures^' in which bills
they desire the concurrence of the Senate.
The Senate resumed the second reading of the
bill to revive and continue in force an act, enti-
tled "An act to augment the salaries of the officers
therein mentioned," passed the 2d day of Mdrch,
one thousand seven hundred and ninety^nine.
Ordered, That it be referred to Messrs. T. Fos-
ter, Clinton, and Tracy, to consider and report
thereon.
The bill for the more convenient organization
of the courts of the United States was read the
second time.
On motion, it was agreed that this bill be the
order of the day for Thursday next.
The bill in addition to an act, entitled "An act
in addition to an act regulating the grants of
iand appropriated for military services, and for
the Society of the United Brethren for propa-
gating the Qospel among the Heathen,'^as read
the second time, and referred to Messrs. Frank-
lin. Breokenridge, and Sumter, to consider and
report thereon.
The bill for the relief of Isaac Zane Was read
and, by unanimous consent, had a second reading.
Ordered, That it be referred to the committee
last mentioned, to consider and report thereon.
The bill last mentioned in the message from the
House of Representatives last recited was read,
and ordered to the second reading.
On motion that it be
Resolved, That the Secretary of the War Depart-
ment be requested to prepare and lay before this House
a statement of the expenses actually incurred in sap-
port of the late Military Establishment for the last
year, for which accounts have been rendered ; and like-
wise, an estimate of the sums necessary to defray the
first year's expenses of the present Military Peace Es-
tablishment:
Ordered, That this motion lie for consideration.
Tuesday, March 30.
Mr. Jackson, from the committee to whom was
referred the resolution of the Senate of the 12th
March, to inquire what further and more effectual
means ought to be provided by law for the carry-
ing the mail of the United States, reported a let-
ter from them to the Postmaster General, and sun-
dry letters and documents from the Postnuister
Greneral to the committee, in reply thereto.
Ordered, That the same be printed for the use
of the Senate.
The following Message was received from the
President op the United States:
Gentlemen of the Senate, and
of the House of Representatives:
The Secretary of War has prepared an estimate of
expenditures for the Army of the United States during
the year 1802, conformably to the act fixing the Mih-
tary Peace Establishment; which estimate, with his
letter accompanying and explaining it, I now transmit
to both Houses of Congress.
TH. JEFFERSON.
Mabch 30, 1803.
The Message and estimate were read, and or-
dered to lie for consideration.
The bill to amend an act, entitled "An act to
retain a further sum on drawbacksfor the expenses
incident to the allowance and pavment thereof,
and in lieu of stamp duties on debentures," was
read the second time, and referred to Messrs. J.
Mason, Tract, and Ellery, to consider and re-
port thereon.
Mr. Ross presented the petition of sundry mer-
chants cf the city of Philadelphia, signed Thomas
Fitzsimons, and others, praying relief from the
operations of the act passed May 13, 1800. entitled
^*An act to retain a further sum on drawoacks for
the expenses incident to the allowance and pay-
ment thereof, and in lieu of stamp duties on de-
bentures ;" and the petition was read, and referred
to the committee last mentioned to consider and
report thereon.
The bill, entitled ^'An act to repeal the internal
taxes," was read the third time, and amended, by
striking out of section 1st, line 2d, after the word
209
HISTORY OF CONGRESS.
210
Mahch, 1802.
Internal Tdxei.
Senate .
" next," the words " the collection of;" and section
3d. line 1st, after " and," by inserting *^ be ;" and
Id line 2d by making the word "discontinue" "dis-
coD tinned." And, after debate, the Senate ad-
journed.
Wbdnesdat, March 31.
Mr. NicBOLAs, from the committee to whom
-WSLS referred, on the 29th instant, the bill making
a partial appropriation for the support of Qorern-
m^t during the year one thousand eight hundred
and two, reported it without amendment.
Ordered, That this bill pass to a third reading.
Mr. Franklin, from the committee to whom
y^rB.s referred, on the 29th instant, the bill for the
relief of Isaac Zane, reported it without amend-
ment. And on motion, the bill was amended, and
ordered to the third reading as amended.
INTERNAL TAXES.
The Senate resumed the third reading of the
bill, entitled "An act to repeal the internal taxes."
Mr. Ross, of Pennsylvania, rose and said, he
had not expected that bill to be called up for this
day's discussion, and was of course unprepared
to go into its merits with as much correctness as
he had intended ; but as the bill was now on its
passage, he would make a few remarks. He said,
whatever might be his conduct, were the laws
laying the internal taxes now before the Senate
to be passed for the first time, he bad no hesitancy
in opposing the repeal.
He was convinced that the public exigencies
required the whole of our revenue, including these
taxes, and that the future impost, and other reve-
nues, had been overrated by tae Secretary of the
Treasury in his estimate. The sale of our West-
ern lands had been charged as productive of the
annual sum of $400,000. He had many reasons
for doubtinff that result, as the best of them were
already sold, as money would become scarce in
this country on the introduction of peace in Eu-
rope, and as agriculture would he less profitable
with the peace prices.
Our expected neighbors, too, in Louisiana, and
the Western Territory becoming an independent
State, as was contemplated, might have an influ-
ence which could not now be foreseen with much
certainty. Upon the whole, he thought the sum
of $400,000 much too high for that part of our
revenue. He supposed the duties on impost and
tonnage must suffer a considerable diminution
from the introduction of peace in Europe, and
wished, in a particular manner, that gentlemen
would attend to the solemn pledge of these inter-
nal taxes, to pay the interest and principal of the
public debt — especially the interest of foreign
loans, referred to in the act passed March 3d, 1791,
in which directions were given that a separate
account of the duties on domestic distilled spirits
and stills, dbc, should be kept, to the intent that
they should never be diverted. He adverted to
a)l the laws laying and altering these internal
taxes, and the solem.n pledging of them for the
payment of the interest and principal oi foreign
loans, and the promise to substitute other funds of I
equal value, if these were diverted. He called
upon gentlemen to iustify, if they could, this fla-
grant breach of public faith, which was contained
in the abolishing of these taxes without any sub-
stitute ; and, on pretence of having made savines
of public expense, which he declared would
amount to little more than savings on paper.
Mr. Morris. — Mr. President, not having expect-
ed that this question would come on before to-mor-
row, I shall not be able to deliver my sentiments
with the brevity and method I could have wished
for mv own ease and the convenience of the Sen-
ate, though unwilling to trespass on their pa-
tience, I must entreat their attention to a subject
highly important ; more so, perhaps^ than it has
yet been considered. And I must so much the
more solicit their kind indulgence, as I cannot
hope to offer amusement, much less to convey in-
struction. It would, indeed, be vain to attempt to
decorate logical deduction, or the meager results
of arithmetical calculation. I shall, therefore,
merely endeavor to recall to the recollection of
gentlemen who hear me, the ideas which have
already passed in their own minds ; and I pray
them to cast off, for a moment, all prejudice
which they ma]^ have taken up, and go patiently
along with me, into the fair investigation of those
points on which the question turns.
I mean, sir, to comprise what I have to say un-
der three heads :
1st. I shall, on general principles, compare in-
ternal taxes with those on the importation of com-
modities.
2dly. I shall examine how far we can rely for
revenue upon the latter, supposing no frauds to be
committed; and
3dly. I shall consider the danger to which that
revenue may be exposed by smuggling.
First, then, let us compare internal taxes with
duties on merchandise imported. And here let
me premise, that in subjects of this sort there is no
universal proposition. We must legislate on prin-
ciples generally true, and be careful not to assume
an exception as the ground of a rule, or believe
that one solitary fact is suflicient to disprove con-
clusions drawn from the general state of things.
In the comparison now to be made, the first
leading feature is the superior cheapness of inter-
nal taxes. This may seem extraordinary, and
perhaps paradoxical, after what we have seen and
heard ol the expense of collecting them. On that
expense, however, I must observe, in the first
pl^e, that, by extending this tax to a greater va-
riety of objects, the collection will cost less in pro-
portion to the amount; and, secondly, that al-
though the sparseoess of population ip particular
districts may prevent, as to them^ an economical
administration, yet this special circumstance, the
effect of which must daily diminish, ought not
alone to induce a preference for another general
system.
Taking-things as they are, let us place this ques-
tion of expense on its true ground. By the cost
of collection, I understand the difference between
what the Treasury receives and what the people
pay. If the necessary sums be (as an internal tax)
211
HISTORY OF CONGRESS.
212
Senate.
Internal Taxes.
March, 1802.
collected from the people immediately, they pay
no more than what goes into the public coffers af-
ter dedacting a certain per centa^e to the officers
employed in the collection. But if the same sums
be raised by duties on articles imported, it is evi-
dent that the merchaut must take an advance od
that part of his capital employed in payment of
the duty, as well as on that which has been ap-
plied to tne purchase and importation of the arti-
cle. Where he received a credit for the duty this
profit will be less in proportion to the length of
that credit. The amount will necessarily vary
according to a variety of circumstances; any hy-
pothetic statement of it, therefore, to he tolerably
accurate, must be so varied and diffused that we
can hetter comprehend it as a logical proposition,
than explain it as an arithmetical problem. The
precise amoiint, moreover, is not essential to our
present inquiry. The retailer purchases of the
merchant with cash or credit. He of course pays,
or engages to pay, the price ; that is to sayr, the
prime cost and charges (in which the duty is in-
cluded) and the merchant's profit on both cost and
charges: for these taken together constitute the
mercnant's price. After this, the retailer removes
the commodity so purchased to the place where it
is to be vended. It will be noted that in some
cases articles pass through intermediate hands be-
tween the merchant and retailer, whereby an ad-
dition is made to the price, either as profit or as
commission. But a consideration of these cases
would render the inquiry too complex. Confin-
ing ourselves, then, to the simple transaction be-
tween the merchant and retailer, it is evident that
when the latter has paid the price (including the
merchant's profit on the duty) ne must take a profit
on the whole of that price, and on the charges he
incurs for packages, freight, and transportation.
In this profit he will of course include the inter-
est of his own capital, or that which he pays to
another for the use of money, or that which (in
the shape of advanced price) he is bound to pay
where he has purchased on credit. It is evident,
also, that this profit must be suficient to compen-
sate him, not only for the emj^loyment of his stock,
but for the labor and professional skill, by which
he is to support himself and provide for his family.
It is, therefore^ equally evident that the advance
must be great m proportion as the place in which
he vends the goods is remote from that in which
he made the purchase, and that it must increase
when sales are slow, because a small profit often
repeated is better than a large one which seldom
recurs. On the whole, we may fairly conclude
that the price* of imported goods will oe greatest
in places n\pst distant from the ports, and in those
where (from the state of population or from other
circumstances) the consumption is small. In such
places, therefore, the duty will fall most heavily
on the consumer.
It is proper, in this place, to distinguish between
articles of mere luxury and those of real utility.
It is of little consequence to the community that
the luxurious should pay dear for the gratification
of their appetites. It is indeed advantageous, be-
cause the high price of such things diminishes the
consumption, operating thereby as a regulation of
police or sumptuary law. But the case is w^idely
different when we come to articles of indispensa-
ble use, or those which long habit has rendered
almost, if not altogether, necessary to the great
body of the people. It is from such alone that
copious revenue can be drawn. And with respect
to them, it is clear that in the form of profit, to
those wno make successively an advance of the
duty, the consumers pay much more than they
would pay for the cost of collecting the same
sum, by an internal tax. levied on the same arti-
cles at the moment ot consumption. Let this
cost then be extended, if gentlemen please, to ten
or to fifteen per cent., still they will find that it is
but light in comparison with the other. They
will nnd, also, that those parts of the country
most distant, and those which are least able to
bear the public burdens, will pay far more than
the wealthy and populous parts tor collection of
their quota. And it will perhaps command their
particular attention, that inhabitants of the large
cities will (in this mode of taxation^ have a pro-
digious advantage over those at a distance. Fi-
nally, if it be objected that, for the internal taxes,
we have hundreds of collectors appointed by the
President, gentlemen must see that, for the duties,
there are thousands of collectors, self-appointed.
Let us not then be terrified by the idea of Execu-
tive patronage, for admitting it to be an evil, we
shall find it to be unavoidable but by greater evil.
The true question is (or ou^ht to be) how the pub-
lic necessities can be supphed with least inconve-
nience to the people.
There is another point of view, also, in which,
on principles of sound policy, a preference is to be
fiven to internal taxes. The collection of them
eeps money in the country, whereas other taxes
necessarily draw it away to the seaports, creating
a distressful scarcity of cash in remote districts.
Now there is nothing which tends so much to pri-
vate economy as money dealing, for there is al-
ways more profusion where articles are procured
on credit, than where they are paid for with cash.
On the one hand, the consumer is more at the mer-
cy of those who supply his wants, and, on the
other, the trading part of the community is more
exposed to loss Irom insolvency ; and, as a result
of both, the sum of national prosperity is dimin-
ished. It may be necessary perhaps to elucidate
this position, and some others connected with it
Let us then take for an example the tax on dis-
tilled spirits ; and to this effect let us suppose a
district surrounding a large distillery, and trading
with the manufacturer. The necessity of money
to pay the tax will, by degrees, introduce money
dealing between the distiller and the farmers. He
will pay to these, in cash, for their grain, and they
will purchase with cash the spirits they consume.
Those not consumed will be sold by him, and the
needful money be thereby obtained both to pay
his tax and to support the commerce of the dis-
trict. The farmer, having sold his grain, will
purchase no more spirits than he wants, imd will
pursue his business so much the more steadily and
cheerfully, as he finds for his produce a ready
213
HISTORY OF CONGRESS.
214
Marcb, 1802.
intemal Taxes,
Senate.
money market at bis door. But if the tax be taken
off and the former practice recur, so that the farm-
er must exchange his grain for spirit, he must
either waste time in seeking a purchaser of the
quantity he has beyond what he wants, or he must
consume it himself. Taking the community in
mass, there will happen a little of each, and the
general result of both will be an excessive use of
spirit, and a considerable waste of time, perni-
cious to individuals, and injurious to the State. I
is completely their own. The reason is evident,
it is palpable. Every part is in their power, as
well that which they take, as that which they
leave. Their choice therefofe decides.
I conclude here, sir, my observations on the first
head, and proceed now to consider what reliance
is to be made on the revenue, supposing no frauds
to be committed. Before I go into the detail of
particular calculations, I must pray to be indulged
with the preliminary remark, that, during the late
entreat gen tleme IK ^hen, to beware, lest mistaking war^ there has been an increased consumption of
the true interest ofthose they represent, like water- foreign articles, because the means of procuring
men who look one way and row another, they at
each successive effort recede from the object they
have in view. They contemplate a benefit to the
interior country by this proposed repeal, which
w^ill produce a contrary effect. It will occasion
great distress for the want of cash.
I foresee that I shall (before I have done) fatigue
the patience of the Senate, and shall therefore,
omit many observations which I have yet to make
on this head. I trust' however that, as a general
proposition, the advantage of internal taxes over
duties on importation, so far as concerns articles
of necessary or general consumption, is sufficiently
evident. IBut there is one point particularly ap-
plicable to our system, which must not be wholly
forgotten. A long credit for the duties is, in many
cases, given by Government. Let it not be under-
stood, that I object to this facility afforded to your
mercnants. I know it to be proper, necessary, and
beneficial to the communitv ; but there is a result
from it, which will not pernaps meet with gener-
al approbation. So far as this duty goes, Govern-
ment furnishes to the merchant a capital on which
to trade; and on this capital the merchant derives
a profit from the people. A profit by no means so
ffreatj indeed, as if he had been obliged to pay the
duty in the first instance ; still, however, it is clear,
that high duties involve the necessity of a credit
(equivalent to an advance! by Government to self-
appointed collectors of tne revenue, from which
they benefit at the public expense. This surely
is no recommendation of the svstem. Let it not
be understood, however, that 1 object absolutely
to a duty on imports. This would be runninff in-
to another extreme, and extremes are seldom either
reasonable, just, or safe. But I contend that duties
should be moderate, with a view as well to econ-
omy in the collection, as to the danger of contra-
band. I contend, also, that when a large sum is
to be raised by a tax on consumption, it cannot be
otherwise collected than as an internal tax, either
with certainty, or with economy. Let me also
observe, in this place, (what I ou^ht to have men-
tioned Wore.) that I musf consider the system,
such as it shall stand after the repeal now demand-
ed, as the system of the present Administration.
It is as much so as if the whole were now about
to be enacted; and it will not do for gentlemen to
say, these duties were imposed by our predeces-
sors, or by this, that, or the other class, set, or sect.
They might have had some pretext (though not
indeed any good reason) for saying so, had they
left things as they found them ; but the moment
they maJ^e a change, the whole of what remains
them were increased. To show this, I ihust be
permitted to observe, first, that (as a necessary
consequence of the war) our merchants found a
great demand for their ships, which, sailing under
a neutral flag, enjoyed (though not without inter-
ruption^ the rights of neutrality. Freights, there-
fore, being high, many ships were built, and the
labor applied to ship-building and navigation ad-
vanced in price; secondly, from the same general
cause, occasioning large demands for our produce,
and particularly for provisions, a similar effect
was produced on the labor employed in agricul-
ture ; and, thirdly, the dearness of labor in agricul-
ture and navigation increased the price of that
engaged in domestic manufactures. The profit
therefore, to merchants, to manufacturers, to far-
mers, to labor of every kind, being great, each
class of society was enabled to consume more of
those foreign articles which were suited to its par-
ticular taste and inclinations. All this is evident,
and requires no other proof than a reference to
recent facts. But there is one circumstance which
may not so immediately strike the eye of observa-
tion, and which is of leading importance to our
present inquiry. This increase of means arose
principally from abroad, and must cease with the
change of exterior circumstances. Could it be
wholly for principally) attributed to an ameliora-
ted conctition of our interior circumstances and
resources, it might be expected to continue, and
continually to produce the same, or similar effects;
but, depending on the war, with the war it must
cease. This point may require elucidation. To
bring it, therefore, distinctly within our mental
v.iew« let us select one imported and one exported
article of general use. Let us, for the first, take
cloth, and for the second, wheat. Six yards of
cloth cost, in Europe, ninety-nine shillings sterl-
ing, to which may be added (for the proportion of
packages^ one shiUine, making together one hun-
dred shillings. To this is added in America, by
law. as the probable expense and risk of transport-
ation, ten per cent. An average taken, I believe,
with sufficient accuracy and fairness, is ten shill-
lings. The amount is one hundred and ten shill-
ings. On which the duty is twelve and a half
per cent., or thirteen shillings and ninepence.
This brings the cost in a seaport to one hundred
atid twenty-three shillings and ninepence. If we
add about ten per cent, for the merchant's profit,
or eleven shillings and threepence, we have a to-
tal of one hundred and thirty-five shillings, or
thirty dollars, being five dollars per yard, to which
must be added atK>ut twenty per cent, to the re-
215
HISTORY OF CONGRESS.
216
Senate.
Internal Taxes,
Marcb, 1802.
tailer. Hence it appears that cloth, which costs
in Europe sixteen shilling and sixpence sterling,
will be retailed in America for about six dollars.
When wheat is, in America, at one dollar and a
half per bushel, three yards of cloth (costing
eighteen dollars) will be paid for by twelve bush-
els of wheat ; but when the price of wheat is only
one dollar, the same cloth cannot be purchased
with less than eighteen bushels : and, on the other
hand, when wheat, in Europe, is at six shillings
sterling per bushel, the manufacturer can, with
three yards of cloth, purchase more than eight
bushels, but when the price rises to ten shillings,
he cannot, with the same quantity of cloth, pro-
cure quite five bushels. Thus, on the interchange
of the same specific articles, under the different
circumstances of peace and war, the American
farmer (in the latter predicament) saves six bush-
els on eighteen, and the European manufacturer
loses more than three bushels out of eight.
Proceeding on this simple ground, we shall be
enabled to take a more general view of the sub-
ject with equal perspicuity. To this effect, as-
suming cloth and wheat as representatives of our
consumption and produce, let us suppose twenty
bushels of .wheat to be the average of our total
export, and three yards of cloth to be the average
of our total consumption of articles imported. If.
on these assumptions, we consider the price of
cloth to be about the same, both in peace and war,
namely sixteen shillings and sixpence in Europe,
and six dollars in America, and if we consider the
peace price of wheat to be, in America, one dol-
lar, and, in Europe, six shillings per bushel, and
finally, if we consider the war price of wheat to
be, in America, one and a half dollars, and, in
Europe, we have these results :
1. As to America. In peace, twenty bushels of
wheat sold at one dollar each, gives twenty dol-
lars, and three yards of cloth purchased at six dol-
lars per yard, cost eighteen dollars; leaving a bal-
ance gained to the country of two dollars.
But, in war^ the same twenty bushels sold at
one and a halt dollar each, give tliirty dollars; and
the same three yards purchased as before for eight-
een dollars, leave a gain of twelve dollars.
The difference, therefore, between the war and
peace prices leaves an advanced gain of ten dol-
lars, equal to one-half the produce at the peace
price. Such is the result as to the husbandry of
America.
2. In Europe, we have, in peace, twenty bush-
els of wheat sola for six shillings per bushel, which
produce one hundred and twenty shillings, and
three yards of cloth purchased for fifty shillings;
leaving a difference of seventy shillings; which,
after deducting the gain by the American hus-
bandry of two dollars, or nine shillings, leaves a
final balance of sixty-one shillings to those con-
cerned in commerce, for commissions, freight, in-
surance, &^*
But, in war, the same twenty bushels at ten
shillings will produce two hundred shillings.
From which, deducting, as before, for cloth pur-
chased, fifty shillings, there remains a balance of
one hundred and fifty shillings ; and, taking from
this the twelve dollars gained by the husbandry of
America, or fifty-four shillings; there remains a
final balance of ninety-six shillings to those cod-
cerned in commerce. But we have seen that thi^
balance was in peace only sixty-one shillings.
There is, therefore, in war, an increased gain to
those concerned in coqimerce of thirty-five shil-
lings.
Hence, then, it appears, that with the same pro-
duce, and the same demand for necessary con-
sumption, the means of every order of oar citi-
zens have been greatly increased, by the contin-
gencies of war, at the expense of foreign coun-
tries. Objections, I know, may be made to this
conclusion, and instances may be adduced to sup-
port them; still, however, as a general proposi-
tion, it will appear to be true, and it is not con-
tended for as an universal proposition. Adopting
it, then, with all reasonable modification, let us
now, sir, proceed to examine those statements of
oar commerce and revenue which the Secretary
of the Treasury has laid before vou. Among
these I find a statement (in the table L,) of arti-
cles supposed to have been consumed annually
during two distinct and successive periods ; and.
on this hypothetic ground, an estimate is made
(according to an assumed rule of proportion) of
the revenue to arise from the present duties for
ei^ht years to come. It appeared to me, sir, when
I looked at the Secretary's report, that his mode
of reasoning, (by supposition grounded on sup]»-
sition,) however it might tend to elucidate propo-
sitions, could by no means serve as dialectic argu-
ment to arrive at truth. His conclusions may
perhaps be just, but I cannot persuade myself that
the ground on which they are raised is sufiSciently
solid.
In order to arrive at something more like cer-
tainty, I have endeavored, in the first place, to
make estimates on facts, in so far as the documents
he has transmitted would enable me. And I have
taken the average annual consumption of articles
and of duties payable on them, for the longest
terms mentioned in the tables annexed to his re-
port ; because it appeared to me that the average
of along term was less likely to be affected by ac-
cidental circumstances than of a short one. I find,
then, from the table marked A, that the amount
of merchandise paying duty ad valorem for eleven
years, is $287,728,492. And I find, from the table
marked E, in which the articles are classed ac-
cording to the rate of duties on them, that a value
of $185,887,546 w6uld, with the present duties,
yield a gross sum of $24,351,054. It may be pre-
sumed, therefore, that $287,728,492, the value im-
ported during, eleven^ years, would have yielded
$37,692,089. If this be right, we have an annual
s^verage of $16,157,135 value, paying a duty
of - - ' - - - 13.426,553
By the table A', the quantity of foreign
spirits, consumed in eleven years,
amounts to 55,475,505 gaUons; by
the table F, that 42,942,322 gallons
paid $12,227,719; we have, therefore,
by the rules of proportion, annu-
ally, 5,043,227 gallons, and a duty of 1,436,047
217
HISTORY OF CONGRESS.
218
March, 1802.
Internal Taxes.
Senate.
The molasses, by the same table A, is
46,809,917 gallons, or annually 4,-
255,447, which, at five cents, give - 212.772
The wine, by table C, is for six years,
12,470,657 gallons, which, at the
present rates, would have paid Qi,-
374,743 ; this gives annually 2,078,r
443 gallons, and a duty of - - 729,124
The tea, by table G, is, for eleven years,
28,548 pounds, which paid a duty of
4.190,184, being annually 2,545,504
pounds, and a duty of - - 380,925
The coffee, by table A, for eleven years,
is 73,827,542 pounds, being, annual-
ly, 6,711,595 pounds, at five cents, is 335,797
The sugar, by table A, is for eleven
years, 391,653,372 pounds, being an-
nually 35,604,852 pounds, at two
cents and a half, is . . - 890,121
The salt, by table A. is for eleven years,
22,087,507 bushels, being annually
2,007,955 bushels, at twenty cents, is 401,591
The average of sundry articles in the
table H, is for eleven years - 362.237
The average of the duty on tonnage
and passports for the last three years
of actual receipts, the accounts of
which have been settled, is, by table I, 120,666
The gross amount is -
Deducting for collection three and
eight-tenths per cent, or -
- 8,295,833
315,241
There remains net
- $7,980,592
I have taken the expense of collection accord-
ing to the table I, which gives the precise amount
during ten years. This differs a little from the
rate assumed in the table L, which, as you will
see, sir, is $3 62 per $100. According to this ta-
ble, the net annual amount for six years, is taken
at 8,350,000, being 369,408 more than the average
of eleven years Just stated. I shall compare the
various items of these two accounts when I come
to consider the probabilities of future receipt.
I have in my hand a detailed examination of
the various articles contained in the table H, so
as to ascertain, respecting each article, the rela-
tion of the general average for eleven years, 1790
to 1800, inclusive, to the special average for six
years. 1793 to 179iB, inclusive. I shall not at pre-
sent, nowever, call the attention of the Senate to
this detail, their time is too precious; but on some
of the items I must say a few words by-and-by.
It wUi be observed, sir, that the general average
of the net amount of duties and tonnage, for the
lon^st period which the documents m our pos-
session will enable us to examine, is somethmg
short of $8,000,000. The Secretary has taken the
net average of six years, 1792 to 1798, inclusive,
at $8,350,000, as appears by the table L; between
that and a preceding period, he concludes there
will be a future advance to the amount of above
a million annually. I remark, however, that in
the gross amount of duties in the last column of
that table, yvli - - - $8,663,000
There are sundry articles which I whol-
ly omit. The first of these is an ex-
tra duty of ten per cent, on goods
imported in foreign vessels, to which
merchants will not, I believe, sub-
ject themselves without necessity; it
IS stated at - - $113,000
And for the same reason I
omit the next article, rest-
ing on the same ground,
which is - - - 43,000
The next is a supposed de-
duction on drawbacks,
which can have no exist-
ence when the drawbacks
cease, and there is little
probability that they will
in future amount to any-
thing worth notice. The
sum stated under this head
IS -
86,000
These deductions, taken to-
gether, amount to -
242,000
So that the gross amount, when strip-
ped of them, will be but - - 8,421,000
Which differs from the gross amount
of the general average I have al-
ready detailed, only - - 125,167
$8,295,833
Let me observe here that, although it may have
been proper to insert these articles for the species
of calculation contemplated by the Secretary,
they are wholly foreign from my view of the sub-
ject ; for the Senate will recollect that my object
18 to consider the probable amount of duties to be
collected in future, supposing no fraud to be com-
mitted. To this eiSect I mean to set out from the
existent state of things, and under each distinct
head, consider the chance of increase and decrease;
comparing, as I go along, what I shall call the
general average ; that, for eleven years, with the
particular average, by which I mean, that for the
six years. 1793 to 1798. And before I begin with
this detail, it may not be improper to ol^erve, in
gross, that the difference above noted, of about
P 125,000, is not material. I had, indeed, taken,
m another view, an estimate of the amount which
I will not now aetain the Senate to consider, but
merelv mention that it is somewhat less. On
the wnole, therefore, I feel myself justified in tak
inp; eight millions of dollars as a present ground on
which to stand, in examining future proba-
bilities.
The first article in the list is the duties ad valo-
rem, which, like all the rest, except wine, is
the average of eleven years, which amounts
to $3,426,553
The particular average of the table L,
is 3,543,000
Making a difference of
$116,447
219
HISTORY OF CONGRESS.
220
Senate.
Internal Taxes.
March. 1802
On which I observe, in the first place, that this
difference is nearly equal to that between our re-
spective totals ; SO that those which exist between
Other items, nearly compensate each other. I
must observe, in tne second place, that many of
the articles subject to this duty have been iiti-
ported during the war, to supply other countries,
and that for some of them the dfuty has not, from
particular circumstances, been drawn back on ex-
portation. I must, in the third place, observe, (re-
curring to the table A,) that, out of eleven years,
the two of greatest import were the years 1796
and 1800 ; the year 1800 exceeds the general aver-
age above eight millions of dollars, and the year
1796 exceeds it above ten millions. In fine, the
year 1796 exceeds the year 1800 two millions. It
IS therefore clear that this increased importation
is not conclusive evidence of increased consump-
tion I and therefore it should not be taken as an
admitted point from which to deduce, by propor-
tional estimate, the future probabilities.
Let me remind gentlemen, also, of the general
principle already established ; that a decrease of
the means to purchase many articles of mere lux-
ury, will, of course, diminish the consumption.
And, let me add, that many such articles, on
which the duty has already been paid, remain un-
sold. As to the rest, looking over the list which
comes under this head, I see several, the importa-
tion of which wiU diminish from other causes.
There are various articles of glass ware, which
gay twenty per cent. duty^. We already have glass
ouses established, and if we do not now make
this substance cheaper than it can be imported,
the cause of that and of such other inabilities
must be sought in the high price of labor. This
price will fall. And let me here, sir, say a few
words on that subject, because we are nowenter-
ingr a field, in many parts of which it must recur.
The high price of labor has a two-fold effect
upon manufactures, to enhance the price. The
laborer receives more wages, and he does less
work. When in great demand, he dictates his
own terms, and is more master than his employ-
er, who is frequently obliged to overlook his neg-
lifi;ence, lest reproof should drive him away. En-
abled to subsist a week from the work of two
days, he spends much time in debauchery; and when
he returns is frequently incapable of performing his
business. The nigh price of home manufactures,
which results from these circumstances, operates
inversely to decrease the quantity. The ^eat de-
mand keeps Up the price of wages, and while wages
are high and journeymen idle, they consume more
and produce less than when, wages being low,
they live in habits of industry and economy ; they
are also much less h^ppy; and, however paradox-
ical it may seem, it is a truth vouched by experi-
ence that if they do not grow rich with low
wages, they become with high wages miserably
poor. While labor is so much in demand as it has
lately been, the protecting duties, which many
were inclined to rely on as the source of public
prosperity, produce an effect contrary to that
which was intended. The home manufactures
are thereby diminished, and importations increas-
ed, of all which the consumer is the victim ; but
whenever circumstances shall, by lowering the
price of labor, the price of produce, and the freight
of ships, effect the radical cure of this evil, more
hands will be engaged in manufacturing,' because
none but good husbandmen and good seamen will
be employed in tillage and navigation*. Add to
this that a given number of manufacturers will
perform more work, and thus the means of in-
crease to our domestic manufactures being doubled,
the proportion of our imports to our consumptioa
must be reduced ; so that, in many cases, notwith-
standing an increased demand, there will be a
diminished importation.
Let us, after this digression, return to the object
we left. Not only the more niffh priced, sucn as
flint slass paying 20 per cent., but window glass.
whicTi pays 15 per cent., will be manufactured in
this country ; for it will be noted that the differ-
ence, duty included, between the prime cost and
the mercantile price of articles imported, which
pay 20 per cent, will be about 45 per cent. ; on
those which pay 15 per cent, it will be about 39
per cent. ; and on those which pay 12 per cent it
will be about 36 per cent. The importation to
firearms, if it do not diminish, will hardlv increase.
Hats were made in America so well and so cheap,
while we were British colonies, that it was thought
proper to pass an act of Parliament, to lay restric-
tions on that business. The furs are in our coun-
try, and are carried thence to Europe ; we hare
wool in abundance ; the logwood is at our door.
Can it then be supposed that the artists of Eu-
rope will long support their competition, when a
hat which costs four dollars in Europe cannot be
retailed here under six dollars ? Copper, pewter,
and tin manufactures are already made amons os
in great quantities. The importation of them
will. I believe, diminish. Earthen and stoneware
(at least those articles that come under that de-
scription) afe so cumbersome that, even without
a duty, they would be made at home ; and it will
not, I believe, be long before our industry shall
embrace some of the finer sorts. Leather and
manufactures of leather are at a price so<^eat as
cannot but excite surprise. Thirty years a^o our
manufactories of leather were in a flounshine
condition. Neither the capital nor the shtll are
diminished. Our export of beef shows that our
stock of hides has increased. Bark, also, we ex-
port, and the enterprising industry of oux fisher-
men leaves no lacK of oil. Why, then, should
we be under the necessity of importing the coarser
manufactures of leather? This can arise only
from the common cause of so niany other woes,
the extravagant price of labor; a cause which
soon must cease. Marble and stone will, I be-
lieve, be imported to very small amount. Stock-
ings, mittens, and gloves, have long been made at
home. What may be the future amount of those
imported will depend, perhaps, on fashion. It will
consist of the finer sorts. Paper hangings and
cartridge paper can both be made at home ; much
of the former is consumed; and there can be no
good reason why that consumption should not be
supplied, in a great degree, without recurring to
221
HISTORY OF CONGRESS.
222
March, 1802.
Internal Taxes.
Senate.
foreign shops. Glass bottles, anyils, hinges, hoes,
and brushes, are among the coarse articles which
must soon be exclusively made at home. An-
chors and sail cloth will both be manufactured
in America ; not, perhaps, to great extent, still,
however, the importation must diminish, even
though our commerce should increase. American
vessels will supply themselves with anchors, sails,
and rigging, in Europe, on which at their return
they pay no duty. The ropemakers, sailmakers,
and riggers of the United States will feel the con-
sequences; for which, however, there is no remedy
but by taking off some of the duties. It may, per-
hax)s, be objected that this practice has not hith-
erto prevailed. To which I reply, that, during
the war, these articles being in great demand in
the ports of belligerent Powers, and being contra-
band of war, so as not to be carried thither under
a neutral flag, were dear. It was not, therefore,
desirable for a ship to procure her outfit in such
ports ; but the peace will operate a total change
in that respect. Linen and cotton manufactures
are increasing daily, and when the ^rice of pro-
duce diminishes, our fellow-citizens in the coun-
try must do more to clothe themselves, in propor-
tion as their means of purchase from the store
shall be curtailed. Our consumption of station-
ery will certainly increase ; but whether the pro-
gress of our manufactures will be equal to that of
the demand, depends on circumstances too minute
for the present investigation. The last of these
articles, which I shall notice, is gunpowder, the
importation of which there is every reason to be-
lieve will daily diminish. Much of it was, I be-
lieve, during the war, exported in contraband,
clandestinely, and) of course, without drawback.
Having tnus eone through the tedious list of
ad valorem articles, and noted such as seemed to
require it, let us (Wore we proceed) look back
and consider whether, under all circumstances, it
be not highly probable that the duty on this class
of articles will rather diminish than increase. I
believe, sir, that if gentlemen have attended both
to the seneral observations and the particular de-
tails, they must be convinced that, on the total,
there will be a defalcation. This single article,
however, amounts to near three millions and a
half, out of eight millions. And it is on this ar-
ticle also that the increase appears to be the great-
est from th^ first to the second period, which the
Secretary has selected as the ground-work of his
calculations, you will see, sir, by recurring to the
table L, that the sums are as 25 to 35.
That which stands next in order is ardent spirits,
the average duty on which is - $1,436,047
The particular average in the table
L,is 1,475,000
Making an increase beyond the general
average of 38,953
With respect to this article in particular, I wish
gentlemen to apply the observations already made
on the means of expense in the several classes of
our citizens. We have seen that our average im-
port is not less than five million gallons. By re-
curring to the table A, we shall find that this im-
port has varied mucn. *The year 1793. for in-
stance, stands charged with 700,000 gallons less
than the year 1790. The year 1799 is charged
with above two million and a half gallons more
than the preceding or subsequent year. Id a word,
the quantity of 1799, exceeds that of 1793, by near
four million of gallons. I mention these things
to show that we should not take the average im
port, even of eleven years, as indicating a con-
sumption regularly eauivalent. But it is a fact,
of public notoriety, that the principal consump-
tion of imported spirits is along the seacoast ; and
that it has been greatly increased by the advance
in the price of labor during the war. The cause
ceasing, the effect must cease, and as habits of itf-
dustry and sobriety prevail, that source of revenue
will ury up. If, however, we should be mistaken
in our hope as to the public morals, there is a fur*
ther reason why it would be imprudent to count
on a million and a half of dollars from the import-
ation of ardent spirits. When labor and produce
fall in price, the domestic manufacture of that
article must become more beneficial, and the con-
sequent diminution of its price will necessarily
exclude (at least amon? the poorer classes) the
use of foreign spirits. The art of distilling is ren-
dered every day more perfect. Already certain
kinds of spirit are prepared which are preferred,
even by the rich, as articles of luxury ; and there
can be little doubt but that in a few years this
will become ose of our exports. The internal
duty which operated (though in a feeble deffree)
to preserve a balance between domestic and for-
eign spirits is, by the act now before us, to be re-
pealed. This very act, therefore, will operate
against that part of the revenue. I ask, then, Mr.
President, whether, under all these circumstances,
there be any reasonable hope that this branch ot
our revenue will increase ? Is there even a slight
probability that we shall continue to derive one
million and a half of dollars from the importation
of ardent spirits ?
The next article on our list is molasses, the gene-
ral average of which, during eleven years, has
been $212,772
The particular average by table L,is - 191,()()0
21,772
leaving a difference of above twenty thousand
dollars annually of decrease.
You will observe, sir, by the table A, that the
quantity of molasses imported has decreased since
the year 1790. The consumption of that and the
succeeding year was twelve million gallons. In
the year 1799 and 1800, it was but seven million
six hundred thousand, making a difference of four
million, four hundred thousand, or two and twenty
hundred thousand annually. By looking at the
table B, we shall find that a great part of the mo-
lasses formerly imported was distilled into spirits;
bilt this manufacture has gradually declined. In
the year 1790, we find a consumption of 2,305,461
gallons of spirits distilled from molasses, and in
the year 1791, 2.536,037.
223
HISTORY OF CONGRESS.
124
Senate.
Jntemal Taxes,
March, 1902.
Making for those years
- 4,841,498
But the consumption in 1799 and 1800
is only 1,889,864
2,951,634
bein^ a difference of near three millions.
We shall find that the consumption of molasses
in kind has been about three million of gallons
annually. I observe, then, in the first place, that
though our importation may have been diminished,
either by the difficulty of procuring that article in
the country where it is produced, or the facility
of obtaining one of more value, brown sugar, there
is another cause of the same effect, namely, that
spirits distilled from domestic materials have sup-
planted those distilled from molasses. We ought,
tnerefore, to combine the import of spirits with
that of molasses. And if this be done for the
three years 1790 to 1792, and for tlie three years
1798 to 1800, we shall find by table A, that in
the former period the spirits amounted to, gal-
lons 12,326,406
And the molasses to - - - - 16,269,367
Making together -. - - 28,695,773
But in the latter period, though the
spirits are - - - 16,736,977
The molasses are but - 11,685,588
Making together only
28,422,565
173,208
The two periods differ but little, yet that little
shows a diminished consumption of the foreign
article. This took place while the price of labor
and that of grain were high, and while the duty
on domestic spirits kept down the competition.
I again ask. what hope is there that this part of
our revenue will increase?
The next article is wine. The average of the
duty for six years, 1795 to 1800, by the table
C, IS $729,124
And the average for six years, 1793 to
1798, by table L, is ... 714,000
The difference is but ... 15,124
•
By recurring to the table C, we shall find that
from the year 1795 to the year 1800, the importa-
tion has declined; for the first three years it
amounted to, gallons - - - . 7,619,278
And in the last, to but - - - 4,851,379
Making a difference of - - 2,567,899
Or, annually, above 850,000 gallons.
This diminution niay. perhaps, arise from a
change in the manners ot those who consume that
article ; for it is, I believe, a fact that, amonff the
wealthier order of citizens, the pleasures of the
social board are not so often as in former times
extended to the vicious excess of inebriation. Per-
haps, also, the art of manufacturing wine among
us, is better understood and more practised. Be
that as it may. believing as I do that the means
of sustaining the expenditure will be rather di-
minished than increased, I do not think we can
count on any considerable advance in this part of
our revenue.
The tea imported during eleven years w^s, we
find by the table G, 28.000,548 pounds, which, at
the present duties, would have yielded $4,190,184.
This gives an average quantity of 2,545,504 pound*,
paying annually ... $380,925
The average quantity for the six
years, 1793 to 1798, by the table L, is
2,175,694 |K)und8, supposed to pay a
duty of $326,000. But this duty is cal-
culated on an average rate taken on the
whole Quantity, which, applied to that
particular part, is too nigh ; if calcu-
lated on the actual kinds and quanti-
ties, it amounts only to - - 314.514
Which, deducted from the former, leaves 66,41 1
Thus, the difference between the average du-
ties for the whole period, and that selected oy the
Secretary, will be above $66,000. So great an
apparent decrease requires examination. I have,
therefore, divided the whole term of eleven years
into three different periods, namely, the first three,
the next five, and the last tnree years; and I have
averaged the consumption of each particular kind
of tea, not only for the whole term^ but for each
of those distinct periods. I find that, in the whole
term, the average consumption of —
Bohea, is 1,858,558 lbs., paying $223,027 duty.
Souchong, is 272,988 ^ 40,136
Hyson, is 216,413 '* 69,252
other Green, is 197,544 " 39,509
Being a total 2,545,504
u
380,924
But, in the first period, from 1790 to 1792, in-
clusive, the average consumption of—
Bohea, is 1,722,194 lbs., paying $206,663 duty.
Souchong, is 197,185 " 35,493
Hyson,is 251,270 « 80,406
other Green, is 45,100 *' 9,020
Being a total 2,215,749
u
331,582
In the second period, from 1793 to 1797, inclu-
sive, the average consumption of—
Bohea, is 1,778,863 lbs., paying $21 3,463 duty.
Souchong, is 214,716 " 38,649
Hyson, is 131,528 « 40,161
other Green, is 107,532 " 21,506
Being a total 2,232.639
((
318,779
In the third period, from 1798 to 1800, inclu-
sive, the average consumption of—
Bohea, is 2,127,749 lbs., paying $255,329 duty.
Souchong, is 445,916 " 80,264
Hyson, is' 323,030 " 106,669
other Green, is 500,005 " 100,001
Being a toul 3,396,700
it
542,163
225
HISTORY OF CONGRESS.
226
March. 1802.
/rUerncU Taxes.
Senate.
Thus, we find a regular though small increase
in the consumption of Bohea tea ; and an increase
as regular, hut more rapid, in the consumption of
Soucnon^. That of Hyson seems to have fluc-
tuated, still, however, the increase has been great-
er than that of Bohea. But it is the article of
Qreen tea (other than Hyson) which has made
the most rapid progress. We find it rising from
forty-five thousand in the first period, to one hun-
dred thousand in the second, and to five hundred
thousand in the third, being nearly equal to one-
fourth of the Bohea. In this article, we trace
distinctly the effect of those increased means of
consumption so often mentioned. They have, we
see, extended over a great part of society the use
of an article of expensive luxury. It is probable
that, by the diminution of those means in future,
the further extension will be limited ; there can,
however, be little doubt that the use of tea (gen-
erally speaking) must increase. If, therefore, this
branch of the revenue should decay, it will not
be from a'defect of consumption.
The next article is Coffee^ the average of which,
during eleven years, is 6,711,595 pounds, paying,
at five cents per pound. - - $335,797
The average estimate for six years, by
the table L, is 7,351,665 lbs., paying 867,000
Making a difference of
31,203
Before I notice this article in particular, I must
take the opportunity to observe, in general, that
(like other things the produce of the West Indies)
the consumption has been much increased by the
peculiar cheapness, arising from circumstances
which have now ceased to exist. It is notorious,
sir, that we have, during several years, been the
glace of erUrepdt for these commodities, which
ave been brought hither to be afterwards distri-
buted throughout Europe. Of course they have
been cheaper than they can be in future. And it
is further to be observed, that, for a year to come,
Ycrv little will be brought to us, because the price
will naturally rise in tne places where they are
produced, and fall in those where they are con-
sumed, from the simple consideration that they
may now, at small expense and risk, be transport-
ed from the one to the other. It must, from that
circumstance, happen that the article of sUgar, for
instance, will be worth near as much, for export
to London, in Jamaica as in New York. This be-
ing the case, merchants who have a stock on hand,
will find their best market at home; and until
that stock shall be consumed, will not seek a fresh
supply from abroad. We may consider, there-
fore, the next year's revenue on these articles
as little or nothing. It is true that the defalca-
tion will not immediately be felt, because the
bonds lor preceding years falling due, part duties
will be in a train of collection ; so that advances
and deficiencies being spread through a greater
space of time will have a more equable effect.
When I speak of the cheapness of these articles,
I must not be naisunderstood. I do not, in a na-
tional point of view, apply that term to the money
price. Money is but the counters by which the
7th Con.— 8
I
commercial game is scored, or the figures by
whose aid calculations of traffic are made. The
real price is the quantity of labor or of produce
required to procure the merchandise. And when
it is an article of luxury, this further considera-
tion enters into the price : What is the amount
which, after the purchase of necessaries, may re-
main for the gratification of appetite 1 When labor
is at half a dollar per ^ay. or three dollars per week,
and board at two dollars, there will remam weekly
for c'iothinff, dec, one dollar. But when labor
is at one dollar per day, and board at three dollars
er week, there will remain three dollars weekly.
f. in the former case, one dollar be employed for
clothing, washing, and other necessary expenses,
and, in the second case, two dollars, there will
still remain in this case one dollar for articles of
luxury. And the same reasoning applies alike to
produce and to labor. After this digression, let
us return to the article : We find, sir. by looking
at table A, that the consumption has been varia-
ble. The average of the three last years, 1798 to
1800, is 7,462,233 pounds, being 750,000 pounds
more than the general average ; but, in the three
first years, 1790 to 1793, it was only 3,836,391
pounds, being 2,875,000 pounds less than the gen-
eral ar^erage. Finally, we shall find the average
of the three first and the three last years, taken to-
gether, to be near 5,650,000 pounds. Now, it is
not, I think, probable, that the consumption of the
country will, for some time to come, exceed that
quantity. If so. the revenue from it ou^ht not to
be estimated above 287,500 pounds, instead of
415,800, the amount relied on by the Secretary;
that is to say, an advance of three-sixteenths oq
367,000, the amount of the duty by the table L, for
the years 1793 to 1798, inclusive. lam the more
strongly of this opinion, sir, because it is notori-
ous that during the late war our export of coffee
has been very great, and because, on looking at
the table A, we find that, although our excess of
import in the year 1795, was - 14,674,726 lbs.
Yet the next year there was an
excess of export amounting to 5,526,269
9,148,447
Leaving for the excess of imports on those two
years little more than nine million pounds.
The next article is sugar, our average consump-
tion of which by the table A, is 35,604,852 pounds,
and the duty at two and a half cents is 9890,121.
The average estimate of the table L, is 36,149,665
pounds, and the duty at the same rate is $903,000.
The general observations on the last article will
apply to this also. For the same reasons which
have been adduced as to cofiee, we roust doubt the
conclusions drawn from both the general and par-
ticular average of the consumption of sugar; and
we shall find by inspecting the table that the years
1797 and 1800 stand charged with above one hun-
dred million pounds. The year 1799 is alone
charged with more than fifty-seven million. The
years 1797 and 1799 amount, together, to 106,847,
381 ; the years 1796 and 1798 amount to but 58,-
609,976. Finally, if we take the amount of the
seven years, 1790 to 1796, we shall find the average
227
HISTORY OP CONGRESS.
228
Senate.
Internal TaxeB.
March, 1602.
to be 28,723,137. At the end of that period, as at
the end of every other during the war, there must
have been a considerable stock on hand ; so that
the average thus found will probaby exceed the
actual' consumption. If on the one hand, it be as-
sumed, that the increase of population will call for
a gteater quantity, we must, on the other hand,
consider the probable decrease of our means to pur-
chase ; and making proper allowances both ways,
we shall find, perhaps, that thirty million pounds
of brown sugar, yielding at two and a half cents
seven hundred and fifty thousand* dollars, is as
much as can safely be relied on. The Secretary
however estimates an advance of three sixteenths
on nine million three thousand dollars, making
one million and seventy-two thousand dollars,
which implies an annual consumption of more
than forty million pounds.
The l^st article, specified in the table L, is salt,
the average consumption of which for eleven yearsj
by the table A, is 2,007,955 bushels, yielding at
twenty cents ^401,591; the six years' average
stated in the table L, is 2,210,942 bushels paying
$442,000. The consumption of this article has
certainly increased (a thing which was indeed ex-
pected) but this increase has not been, I believe,
equal to the expectation. For the future it can-
not advance even as it has done before, nor by any
means in proportion to our population, because, in
the first place, those who live beyond the moun-
tains find a plentiful supply among themselves,
cheaper than it can be imported ; and because, in
the next place, those who live on this side of the
mountains will, as the country becomes more popu-
lous, require a smaller proportion of salt. Gen-
tlemen may at first view think this proposition
paradoxical, but let them consider that when the
number of inhabitants in a given district is suffi-
ciently large to consume fresh beef, during the
warm season, so that the butcher can keep up a
constant supply, less salted meat will be used. It
is true that our export of beef, pork, and fish, will
increase, but the revenue will nor be benefited by
that circumstance. On the whole I incline to
think that this article will suffer no diminution,
and it may perhaps be relied on for the expected
amount.
We then come to sundries, as specified in the
table H. The general average of eleven years by
that table is a revenue of $362,237. The special
average of table L, is but three hundred and fifty-
two thousand.
I will not, sir, detain the Senate, by a particular
examination of all the articles in this table, al-
though I have prepared notes for that purpose.
Even as to those to which it may be proper to call
their attention, I shall briefly state my idea of the
future, without dwelling particularly on the rea-
sons; for it is growing late, and I fear much that
your patience will be exhausted.
Beer, ale, porter, and cider, yield on the general
average $21,305 j on the particular average $24,-
053 ; leaving $2,748.
We import no cider, and the decr^se of the
price of grain and of labor will probably enable our
brewers (who have already brought their art to
great perfection) to supply all our wants of beer,
ale, and porter.
Cocoa yields, on the general average. S19,070;
and on the particular, average, $16,768 ; leaving
$2,302.
As an article of luxury, the consumption will
not much increase.
Candles paying two cents per pound, yield on
the general average, $1,288 ; on the special are-
rage $2,309; leaving $1,021.
The imports of this article will probably cease,
as we export the materials from which it is made,
and the quantity will increase with that of salt
beef.
Cheese, paying seven cents per pound, yields, od
the general average, $12,089; and on the particu-
lar average, $15,652 ; leaving $3,563.
If, sir, we may judge by a great instance (of pub-
lic notoriety) there can be little doubt but that our
cheese-makers will largely supply our wants.
Soap at two cents per pound, yields on a general
average, $9,348 ; and on the particular average.
$5,684 ; leaving $3,664.
This also must decrease as well as the revenue
from candles, and from the same cause, for we ex-
port fat, tar, and lixivial salts. But I cannot help
observing, in this place, that the tax on soap and
candles i^lls heavily on the poor in our large cities.
They must consume these articles, which differ in
that respect from ardent spirits, and even from cof-
fee, bohea tea. and brown sugar. Let it not how-
ever be understood, sir, that in anything I have said,
or anything I shall say, it is in the remotest degree
my intention to call for a comparison between
different articles on which the weight of taxation
may fall. The members of the other House, being
more immediately representatives of the people.
are perhaps better acquainted than we are with the
wishes and feelings of our constituents ; and what-
ever may be my private opinions, I shall (from
deference to them) presume that they have con-
sulted those feelings and wishes. These indeed
ought to be consulted, for it is of consequence that
the public burdens be borne not only with ease,
but with satisfaction. I do not say that where the
people wish for anything which I believe to be per-
nicious that I would grant it, even in compliance
with the will of their iramedate representatives.
No, sir, it is our duty in such cas^s to oppose firm-
ly our reason to their will. We owe ourselves to
the public — we owe our time, our labor, and our
lives. Nay we have a heavier debt. We owe it
to the people to incur their displeasure for the pro-
motion of their good. Neither the love of their
applause, nor the fear of their censure, should lead
us to swerve for a moment from thestraight path
which is pointed out by reason and duty. Under
these impressions of what we owe to the other
House, to those whom they represent, and to our-
selves, I shall confine myself to the expression of
regret, that more attention was not paid to the ne-
cessities of the poor who dwell in our cities. They
form indeed but a small part of the community ;
but while we are so busy in taking off the taxes
which fall on useless or pernicious expense^ through
the vast extent of our territory, I wish there had
229
HISTORY OF CONGRESS.
230
March, 1802.
Internal Taxes.
Senate.
been some sentinnent of commiseration for those
who pay more than twenty per cent, advance on
articles sd necessary as soap and candles.
Tobacco is the next article which I shall notice.
At ten cents per pound it yielded on the general
average, $4,899 ; on the particular average. $2,-
962; leaving $1,937.
The greater part of what we have imported
came. I presume, in the shape*of Havana cigars ;
and tnat port beins now shut against us, the im-
portation will probably dim in i^, if it does not
wholly cease. The sooner the better.
The general average of loaf sugar at nine cents
per pound, is $7,847, and the particular average is
$3,720 ; leaving $4,127. This shows a diminution
of more than one-half, but if we examine the
table H, we shall find that the average import of
the three years, 1790 to 1792, was 208,540 pounds;
that of the six years, 1793 to 1798, was but 41,-
337 pounds; and that of the two years, 1798 and
1800, only 11,711 pounds.
If the mternal duty on this article be taken off,
there can be no doubt but the regular importation
must cease, and of course the duty.
Cotton has, I find, yielded, by a duty of three
cents per pound, on a general average, $17,406,
and on the particular average, $29,805 ; leaving
$12,459.
As this article forms one of our principal ex-
ports, I cannot suppose that much will be import-
ed. The greater part of what has been collected
on it, has, I presume, arisen from the circumstance
that it was not an exportation entitled to draw-
backs.
Nails and spikes have yielded at two cents per
pound, on a general average, $60,788, and on the
particular average only $50,116; leaving $10,-
672.
These are among: the principal articles of the
table H. I shall dismiss them with a single ob-
servation. As a large quantity is made in Amer-
ica, notwithstanding the high price of labor, when
the price of labor falls that quantity must in-
crease. The duty is at least twenty per cent,
and the packages, freight, and transportation, are
great compared with the value. Importations
must therefore decline, notwithstanding an in-
creased demand.
Hemp is the next and most considerable article
of this table; it amounts, by the general average,
at a duty of twenty dollars per ton, to $63,847,
and by the particular average to $70,434 ; leaving
$6,587.-
In addition to what has already been said, when
anchors, sails, and sail-cloth, were under consid-
eration, (which I shall certainly be excused from
repeating,) it will be recollected that this is an
article or American produce. Much labor being
required in preparing it for market, the culture is
necessarily limited by the hands to be procured,
and the expense attending them. It must also be
recollected that, in remote districts, as the price of
ffrain declines, hemp and flax will be cultivated,
because they can better bear the cost of transpoh-
ation. From all these reasons it is evident, that
this source of revenue must dry up in no distant
period. The duties on hemp, nails and spikes,
form one-third the amount contained in table H.
Cables and tarred cordage, paying a duty of
thirty-six dollars per ton, yielded by the general
average $15,681, and by tne particular average
$14,545; leaving $1,137.
I will not repeat what I have this instant said
about hemp, but I will add, that while^ by this
duty, we mean to encourage the domestic manu-
factures at the expense of our navigation, we, by
the duty on hemp, discourage the manufacture,
but still at the expense of our navigation. Giving
thus to agriculture and manufactures such advan-
tages over navifi^ation, we must not be surprised if
those concerned in it redress themselves by fitting
their vessels in foreign ports. I will not dwell on
this subject, but simply remind the Senate that it is
no light or trivial matter so to apportion taxes, as
to conciliate the jarring interests of society, and
produce the greatest possible sum of public pros-
perity. It requires much cool thought and calm
reflection, it is not to be expected from sudden
measures, hastily dictated by partial views.
The articles of twine and packthread, produ-
cing bv the general average $6,256, and by the
particular average $5,860, leaving $396, are only
mentioned for the purpose of observing, that with
a duty of nearly four cents per pound, on an arti-
cle of such trifling value, there can be no doubt
but that our demand will soon be supplied by do-
mestic manufacture.
I shall say nothing of the duty on coal, except
that in so tar as it is an article of domestic use,
the duty falls heavily on consumers, exclusively to
be found in large cities ; and that, in so far as it is
employed in manufactures, the duty isadiscourage-
ment of what the Legislature wished to promote.
The amount (either thirteen thousand or nine
thousand dollars, according to the difierent periods)
is by no means sufficient to counterbalance the
disadvantages which result from it. Much coal is
used in the coarse manufactures of iron, and it is
these, which Tof all others) we ought specially to
encourage. As there is nothing more generally
felt than the hi^h price of iron wares, so it has
ever been the object of wise Governments to re-
duce that price, by every just mode not inconsist-
ent with greater interests.
The duty on shoes, at fifteen cents per pair, pro-
duced about twelve thousand dollars annually, and
I find by the table a regular increase of importation,
the duty notwithstanding — leather shoes, within a
dozen years past, have risen to nearly the double
of their former price. Fifteen v years ago, they
were made in this country as clieap according to
the quality, as in Europe; but now, with a duty
near fifteen per cent, on the real value, importa-
tions have increased. Here again we find the ill
eflects flowing from a high price of labor. They
have probably caused this protecting duty to im-
pede the progress it was intended to promote. But
from the moment that a fall in price or diminution
of the demand (compared with the supply) shall
introduce, among our workmen,those habits of in-
dustry and economy which high prices have ban-
ished, the importation must cease ; and unless I
231
HISTORY OF CONGRESS.
232
Senate.
Internal TcLxes,
MarcRj 1802.
am greatly mistaken this period is not remote.
I have now, sir. gone through the tedious detail
of all these articles. There remains only the duty
on tonnage and passports^ which I have taken at
$118,723, and the Secretary of vour Treasury at
$108,000, making a difference or about 10,000 less
than my estimate. As our shipping (much of
which has been employed in carrying on the
commerce of other nations) will now lose that
business, and of course be confined to our own, it
will exclude, in a ^reat measure, all foreign bot-
toms. If so, the foreign tonnage duty must de-
crease, and our own navigation will, I apprehend,
be for some time to come rather stationary. I
cannot, therefore, suppose there will be any ad-
vance in this branch of our revenue.
And now, I pray gentlemen to look back and
consider the various items of the account we have
gone over. Will they not be convinced that, if
some few articles should remain as they are. or
even if one or two of them should increase, yet
many others must inevitably decline, and that all
the change to be expected from our growing pop-
ulation, will be counteracted, in a great degree, by
the decrease of means to purchase foreign luxu-
ries, and still more by the increasing resources and
productions of cur domestic skill and industry?
Uan we, I ask, expect that the duties will rise
from eight millions to nine and a half? Can we
expect that they will long continue even at eight
millions? I know. sir. that the deficiencvwill not
immediately be felt. Our Treasury is full. Large
sums are still due for the late abundant harvest of
revenue. These will supply the ensuing want, so
that one or two years may elapse before we awake
from the dream of fallacious prosperity. We shall
not the less, however, experience a serious dimi-
nution of the public income. This event must
happen, even if these duties, on which we so vain-
ly rely, should all be regularly and honestly paid;
but will that be the case?
This leads me, sir, to the third point with which
I proposed to trouble you, and I proceed to con-
sider how far the practice of sraue^ling may en-
danger a revenue dependent on high duties. I
shall perhaps be told that the merchants of Ame-
rica disdain the vile practice of smuggling, and
that no danger on that ground is to be apprehended.
I believe, sir, that I duly appreciate, and I am sure
that I greatly respect tne honor and integrity of
our merchants. Much I know is due to their pat-
riotism, much to their regard for the Government
under which they live, something perhaps to their
friendly sentiments for those by whom it was ad-
ministered; but the commerce of America is not
exclusively in the hands of Americans. I know
not of any law to prevent foreigners from settling
among us and engaging in trade. What common
interest, what common feeling have thev with
our fellow-citizens ? By what principle are they
bound to siipport the credit, maintain the honor,
or advance the dignity of our Government? What
is it to them that our revenue should fail? Why
should they wish to strengthen systems under whicn
they neither expect nor wish to live? In coming
hither they seek gain, and, if successAil, carry the
honey they have collected to their own hive.
Men of this sort, leaving their homes in pursuit of
profit, easily find cut the left-handed road to for-
tune. If money is to be got by smugprliog, they
will smuggle ; and the practice once begun, will
extend itself, and must at last become general.
I say it must. The fair trader cannot exist, when
driven to a competition with the dealer in contra-
band. Imagine to yourself a merchant with a store
full of goods which he cannot sell but on ruinous
terms, and who sees in his neighbor a rival pros-
perous by illicit means; will such a merchant,
when bankruptcy stares him in the face, when
the wife of his bosom and the children to whom
he is a father look up to him in vain for bread,
will he refuse to follow the pernicious example 1
Can he resist ? No, it is not in nature. These
strong feelings of the heart will hurry him awav.
Bind him as you may by oaths and vows, he will,
he must break them. He cannot tear from his
bosom all the charities of life. It is possible that,
in spite of temptation, and with the certainty of
ruin, some few instances should remain of un-
bending principle ; but the great mass will un-
doubtedly fall. The only question then for a le-
gislator is how far the practice will be profitable,
or, in other words, what is the proportion between
the benefit and the risk.
Il has happened to me, sir, in travelling alon?
the coast of Flanders, to learn (both at Dunkirk
and Ostend) some facts which may throw light on
this inquiry. I select one as the most apposite. Be-
fore the commutation act was passed in England,
the smuggling of tea in that kingdom was brought
to so regular a system that, for a fixed premium
of twenty per cent, on the valued invoice, smug-
glers undertook to deliver specific chests of hyson
tea at any place named in the city of London; and
failing in the delivery they paid the amount. I
have chosen this article, because (the bulk com-
f>ared with the value) it furnishes a standard tol-
erably accurate for the average rate of merchan-
dise. The next point is to consider the dangers
to be encountered or eluded. The coast of Eng-
land is stormy and of difficult access. In one
season of the year, the approach is dangerous from
physical causes, in other seasons there is great
risk of discovery, by the numerous cruisers and
revenue cutters. In either case, when the goods
are landed, new dangers arise, from a host of excise
officers, who have a right to examine every pack-
age. The country, moreover, is open and highly
cultivated; so that the means of concealment are
unfrequent. Compare these circumstances with
those of our own country. Without noticing the
unlimited means of illicit trade in possession of
small fishing vessels to the eastward, a single
glance at our coast from Cape Hatteras to Cape
Cod, is sufficient to show the superior facility of
approach. Along the coast, fron the beginning of
May to the middle of August, vessels may ride at
ancnor in perfect safety. Innumerable inlets offer
to the smuggler a safe retreat. Already flat-bot-
tomed vessels ply between some parts of this coun-
try and the West Indies. These can run into
water too shoal for your revenue cutters, even if
233
HISTORY OF CONGRESS.
234
March, 1802.
JrUemal Taxes.
Senate.
they were sufficiently numerous to interrupt illicit
trade; but did they like the fleets of Britain cover
(as it were) the ocean, still they could not inter-
rupt the adventurers ', and when smuggling vessels
-once enter the inlets, should revenue officers at-
tempt a seizure they will be resisted. The people
in tne neighborhood, deriving advantage from a
concern in that business, will join in resisting.
Will you quell them? Where I ask, is your mil-
itary force? You have none! And if you had,
'what would it avail you? Look again at that
extensive coast, see it clothed with vast forests
of pine, which^ proud of their sterility, bid defiance
to the nand of cultivation. See those impenetra-
ble morasses, whose paths are known only to those
5vho inhabit them, and which are intersected by
deep creeks with endless variety. Send regular
troops of imbodied militia mto this region to en-
force your revenue laws; they will meet there a
race of men bred from infancy to the use of arms
and subsisting in no small degree from the chace.
Dangerous marksmen, they will support the
wastefulness of savage war by the resources of
civilized man. Where the practice of smuggling
obtains, you have no m^ans of presenting a breach
of your jaws, but by repealing them. Straining
at too much you will lose all. You hastily throw
off a small burden now, and you will soon be
cbliffed to take one up which is' far more heavy.
In the meantime^ this country of order, of peace,
^nd happiness, will become the theatre of violence
^nd contusion. The morals of our people, already
impaired, will be wholly prostrated. Where all
will end is not easy to conceive nor even to con-
jecture.
But these, it will be said, are illusions of fancy;
let us see whether they be not the cool deduc-
tions of impartial reason. To this effect I shall
beg leave slightly to notice those articles, whipb,
from their bulk, their value, and the amount of
duty, will fall properly within the province of the
smuggler. Among those which pay twenty per
cent, duty are steel springs, coach, and chariot
glasses, looking glasses, and cut glass. Of arti-
cles paying fifteen per cent., there are plated ware,
jewelry, buckles, buttons, clocks, watches, gold
and silver lace, China ware, paste work, harness,
pocket books, powder flasks, and sundry other arti-
cles of leather, raisins, prunes, spices, many cabi-
net wares, essences, periumes, dentifrice, bonnets,
hats, gloves, silk stockings, lace, ribbons, fans,
and other articles of millinery. Finally, among
the articles paying twelve and a half per cent.,
are whips and canes, cambrics, lawns, fi^auzd, silks,
chintzes, and muslins. Every gentleman who
hears me, must perceive, that eacri article in this
long list will pay for the expense and risk of smug-
gling. Nova Scotia, the Bahamas, the Wedt India
Islands, perhaps the Floridas, will be filled with
them, and furnish a constant supply. Pursuing
our former track, we come (after the articles pay-
ing a duty ad valorem) to ardent spirits. The
duty, in a document I have before me, is stated to
be seventy per cent., it certainly is above fifty per
cent. The very lowest is twenty-five cents per
:gallon, which gives twenty-two dollars for a hogs-
head of ninety gallons. It can be smuggled for
half that sum. Suppose the expense of smug-
gling, like that of tea into England, were. as high
even as twenty per cent., there would still remain
a profit of above thirty per cent, to the adventu-
rer, can the fair trader meet him on the ground of
competition?
The duty on wines, according to the same doc-
ment, is for small claret in casks, St. Georgio, and
other wines of the Western islands, except Tene-
riffe, one hundred and twenty-five per cent, but
were it only half that amount it is more than suf-
ficient— on the best Madeira it is fifty-eight dol-
lars per pipe of one hundred gallons — and it is
notorious that for a much smafier sum the duty
may be evaded.
The duty on Bohea tea, from India, is twelve
cents; it can be imported and sold to a profit for
twenty-five to thirty cents ; of course the duty
amounts to full half the value. On other blacK
teas it is eighteen cents, equal to about one-third
the value. On Hy&on, thirty-two cents, equal also
to near a third ; and. on other green, it is twenty
cents, which is more than half. Thus, on teas in
general, the duty is from one- third to one-half the
value. Compare this with the duty in England,
which was but one-third ; see the consequence in
that country, notwithstanding the most jealous
care of a vigilant Government, with the peculiar
advantage that all licit importation was by a sin-
gle company and in a single port; then judge of
the consequence in this country. It goes to a
length you are not aware of. It must, in the end,
deprive your merchants of their trade to China.
The vessels fit for that commerce are too large for
illicit trade, and I repeat it again, the fair trader
cannot, where duties are so high, compete with
the smuggler. The trade must be abandoned,
and the profits of it go into foreign hands. In the
Dutch, in the Danish islands, magazines will be
filled with teas of inferior quality; your people
will purchase them at a high price, the State will
lose the revenue, the merchant will lose his busi-
ness, and the citizen will be obliged to consume
articles of inferior quality.
The duty on coffee and on brown sugar is near
fifty per cent. These articles are produced in our
neighborhood ; they are usually brought in small
vessels ; there cannot be the slightest difficulty in
the clandestine trade; it not only will, but it must,
(nay, it is almost impossible that it should not,)
take place : and, if refiners of loaf sugar are estabn
lishea in our neighborhood, that article also will
find its way among us to the exclusion of our do-
mestic manufacture, the repeal of the internal
duty notwithstanding. There is one article, play-
ing cards, with which we are already inundated
from Canada; and the high price is sustained,
although the revenue is defrauded. "
Let gentlemen, then, look at the consequences.
They complain of the number of officers employed
in the collection of direct taxes, but it has been
shown that a still ^eater number is employed, in
collecting the duties, and now it appears ^hat a
great addition must be made (even to that num-
ber) for the purpose of defrauding the Govern-
235
HISTORY OF CONGRESS.
236
Senate.
Internal Taxes,
March, 1802.
ment, while they collect from the people large
taxes, no one dollar of which is to enter the pub-
lic Treasury. Gentlei^en wish to favor the ii/te-
rior country at the expense of the seacoast, and
their measures will render the interior tributary
to the very worst of those who live along; the
shores of the ocean. Neither will the merchants
who carry on an illicit trade derive from it all the
advantage which the puhlic lose. Look, I pray
at your northern and southern frontiers ; see upon
the north the most commercial nation on earth ;
the nation which has most capital, and certainly
not the least enterprise ; they are separated from
you by a long line of water communication, which
invites to contraband. On this quarter you can
have no means either of prevention or of detec-
tion. The merchants of Canada will supply with
articles, highly dutied, the whole Western world.
Nay, many such articles will, from the facility of
communication in the United States, find tneir
way from the St. Lawrence, to the head waters
of the Carolinas and of Georgia. To the smug-
glers of Canada, then, will your citizens pay that
tax which they wish to withhold from their own
Government. Let it not be understood that I
mean to cavil at the particular articles which the
majority of the other House have selected. This,
as I said before, I leave to them ; nor shall my
wishes lead either to objection or to complaint.
But if, on the consumption of these articles, you
persist in raising such large sums, it must be, in
part, by an internal tax. Take a moderate share
as duty ; take what the trade will bear, and what
the merchant can pay ; take what will ^ive no
temptation to fraud : and take the remainder in
the only way by which you can get it ; take it in
the way l^east hurdensome to the people ; take it
in the way most equal and most just. Let the
burden fall in due proportion upon all. Imitate
the operations of nature. Let exhalations be
drawn from an extended surface, and then fall
back to the earth in prolific showers and refresh-^
ins dews. ^
Mr. Mason, of Virginia, said he would not oc-
cupy much time, as he concluded every gentleman
had made up his mind. He thought the gentle-
man from Pennsylvania, Mr. Ross, ought to vote
for this repeal, ii he would now oppose the first
institution of internal taxes. Necessity was the
only ground which could justify the imposition of
taxes; and, at any time, when such necessity
ceased to exist, it would be proper to abolish. If
the people saw the Government disposed to lighten
their burdens, they would cheerfully submit to
taxes in future. He acknowledged it would be
difficult to ascertain the result of things in respect
to our revenue on commerce, but believed it
would keep pace with our increase of population.
Drawbacks would now cease, and all our imports
would realize a revenue. Depredations had in-
jured us during the European war; they would
now cease. He acknowledged that the high prices
of our produce increased our means of consump-
tion, but thought gentlemen had not sufficiently
attended to the corresponding high prices of for-
eign articles. Coffee^ sugar, and West India pro-
duce, he thought, would fall, as much, or nearly
as much, as our own produce. He said, gentle-
men could better attend to the Secretary of the
Treasury's calculations and statements at their
lodging, than here in debate, and believed it tibst
to stick to the Secretary's report, rather than to
calculations of anybody else. It was not import-
ant or relevant to prove what kind of taxes were
best, it was enough that we could do without
these, which were odious to the people, and many
of them vexatious, such as the stamp duty, (£4:.
As to smuggling, he did not think we were much *
in danger of it, unless the art should be learnt
from the gentleman's (Mr. Morris's) speech, who
bad proved that if it was not moral, it was at
least venial to smuggle. The carriage tax, he
thought, was unconstitutional. Gentlemen in op-
position had triumphantly brought forward the
appropriation, and the pledge of these taxes to
pay the interest of foreig^n loans, and, in general,
the interest and principal of our national debt ; he
considered this but a pledge, which we had good
right to withdraw, if we had a sufficient sum of
other funds pledged to answer all the demands.
He considered 'the savings made already in our
current expenses, would release a sufficiency of
other funds, to stand in the place of the internal
taxes, and justify us in abolishing them.
He thougfht gentlemen were too tenacious to
keep in omce their friends ; he did not condemn
the principle of respecting faithful officers who
had left otner business to serve the public, but he
though^t, in this instance, and in every instance
this session, when an attempt was made to reduce
the number of useless officers, that the opposition
were more attentive to the good of those officers
of their own creation, than they were to the good
of the people, which seemed not to have much
weight with them. Upon the whole, he had al-
ways considered these taxes as unwise, when laid^
ana oppressive in their operation ; they were the
darling child of the first Secretary of the Treasu-
ry, who had declared, that excises were forced
upon the people in other countries, and that they
should go down here. They were, he believed,
very obnoxious to the people, who expected those
whom their confidence had placed at the head of
their afiairs, should destroy them; and as he be-
lieved it could be done without hazarding our pub-
lic faith, especially if we economized as we ought
in our expenses, he should vote for the repeal.
Mr. Tracy. — Mr. President, I intended to offer
my sentiments, upon this subject, more at large
than my present strength will enable me to ac-
complisn. But I regret this circumstance the less,
since my honorable friend from New York. (Mri
Morris,) in his able argument, which was yester-
day offered to the Senate, has done so much jus-
tice to this important subject.
Without any knowledge of his calculations. I
had adopted his mode of ascertaining that a ae-
falcation of our impost and tonnage duties would
be the unavoidable consequence of the present
state of affairs in the United States and Europe.
I am strongly impressed, sir, with the idea that
if gentlemen will permit themselves to give the
237
HISTORY OF CONGRESS.
238
March, 1802.
Internal Tcuves.
Senate.
calculations and arg|uments of my honorable
friend a candid attention, the result will be a con-
viction of their force and importance ; and that,
as far as demonstration, upon such a subject, can
be obtained, he ^has succeeded in demonstrating
that our import and tonnage duties will decrease,
and of course will not alone be sufficient to meet
the public exigencies.
Permit me, however, to bring into view a few
points in the same train of argument, which have
either not been mentioned at all, or not urged so
far, as their importance will justify.
The first question which will occur, when we
contemplate the repeal of laws imposing taxes, is,
can the public requisitions be met and satisfied
without themi To answer this question with
propriety, let us cast our eyes upon the expendi-
tures, wnich are indispensable for eight years to
come.
I assume the period of eight ]rears. because
within that time our Dutch debt will all fall due,
and our eight per cent, stock, will become re-
deemable.
The statement will be as follows :
Interest and reimbursement of six per
cent, slock . - - - ' $26,802,896
Interest and reimbursement of Dutch
debt 10,647,672
Interest on three per cent, stock - 4,579,129
Interest on other loans, as per Treasu-
ry statement ----- 5,395,414
Payment on bank loans - - - 2,740,000
Payment of bank per cent, stock 6,480,000
Interest on 5j per cent, stock, not in*
eluded in Treasury statement, for
two years 203,225
Interest on 4i per cent, stock - - 13,534
Interest on navy stock, 5 years - - 213,510
*
Making in the whole a total of - - 57,075,580
Divide this total by eight and the sum will be
found to be $7,134,447 50 cents, which, in each of
the successive eight years, we must pay, to fulfil
our public obli^tions. When I say must pay, it
is strictly true in respect to all the above items,
excepting the eight per cent, stock, but as that is
on an interest so much higher than any other part
of the public debt, I presume Government will
feel an obligation sufficiently strong to pay it off
as soon as it becomes redeemable^
To this sum of - - - - $7,134,447 50
We must add as annual expense.
civil list 780,000 00
Foreign intercourse - - - 200,000 00
♦Expenses of navy - - - 900,000 00
E3q)enses of army - - - 1,100,000 00
Making in the whole, a total annu-
al expense of -
- 10,114,447 50
* The current annual expenses are taken from the
last and lowest estimates ; if any increase in army or
navy expenses should happen, these estimates will fall
short.
for eight years to come. To which must be added
the contingent expenses, which experience has
taught us, must and will occur in the most peace-
able times; such as expenses to carry into effect
treaties, <&c.. dbc, to the annual amount o{ one of
or two millions at least. During this year, the
French convention, and a recent one with Great
Britain, have made a serious call upon our Treas-
ury, and at ail times the sum must be considera-
ble, which prudence will dictate should be kept in
the Treasury to satisfy contingencies.
For the payment of this annual sum of $10,114,-
447 50. with the probable contingencies, what are
our means ? If tnese internal taxes are abolished,
we must resort to the sales of Western lands, pro-
duce of the Post Office, and dividends on bank
shares, as the only aids of any amount to our im-
posts and tonnage revenue. And although I do
not believe the sum of $400,000 a year can be ex-
pected from the sale of lands, for the reasons of-
fiered by the gentleman from Pennsylvania, (Mr.
Ross.) and although it is doubtful to say no more of
it, whether we shall not expend all the income of
our Post Office in the extension of roads, and other
incidents to the Post Office itself, yet I will take
the sums calculated by the Secretary of the Trea-
sury to arise from those sources.
Annual sales of lands -
Do. produce of Post Office
Dividend on bank shares
-$400,000
- 60,000
- 71,000
Making in the whole a total of - 521,000
If this sum is deducted from our annual expen-
diture, it will leave $9,593,447 50, which must be
paid by the duties on impost and tonnage, or not
at all, together with all contingencies. Is it pro-
bable that the net produce of our revenues, arising
from impost and tonnage will amount to the sum
of $9,593,447 50, for each year, daring the period
of eight years ? The answer to this question it
must be acknowledged, cannot be mathematically
accurate ; but it is presumed, that a tolerably cor-
rect estimate may be made. Here, sir, I avail my-
self of the calculations and arguments of my hon-
orable friend^ (Mr. Morris.)
Consumption must form the basis of our reve-
nue by imposts. And as I believe the maxim to
be just, that for a given number of years, no people
can consume more of foreign articles than they
can pay for. the diminution of means, owing to
the lower process of our own products, &c., must
diminish consumption. The increase of popula-
tion will certainly increase home manufactures j
labor which has been turned to account, to aid our
remittances for imported articles, will of course
now be turned to manufacturing ; and the very act
of repealing the laws laying internal taxes, will
lower the price of domestic spirits, loaf sugar, &c.,
and a resort will be had to them, at the expense ot
impost on similar imported articles. The six per
cent, and other stock of this country, have been
articles of remittance, which source must in a
measure be dried up, if Europe shall remain in
peace.
239
HISTORY OF CONGRESS.
240
Senate.
Internal Taxes.
Mabch, 1802.
The article of imported salt, forms an important
item in our table of impost. In the statement of
the Secremry (marked O) there is slated to have
been 2,734,243 bushels of foreign salt, imported
into the United States, in the year 1800, upon which
a duty of twenty-five cents per bushel was paid,
amounting to $546,848 60. All this sum will
very soon be taken from our*impust. the people at
the eastward, are now manul'ac luring sea- water
into salt, with so little labor, and with such success,
that I am convinced they can, in a very little time,
afford it for less than the ordinary freight from the
West Indies. I mention this article of salt, because
it is at present an important article of impost, and
because I verily believe it must soon cease to be
productive; and particularly because I conclude
the circumstances of its very successful manufac-
ture, and the facility which with incalculable quan-
tities can be made, have not obtained general no-
toriety. Can any man with a view of this state of
facts, in addition to those mentioned by the gen-
tleman from New York, believe that our impost
can be as productive as it has been during the war
in Europe ? I think not. It is true, that for a year
or perhaps eighteen months, the sum of receipts
at the Treasury may not be sensibly diminished,
by reason of the duties heretofore having been se-
cured by bond and payable in future. But when
we take jnto consideration the very heavy duties
on coffee, tea, and 'brown sugar, which have only
been supported by the favorable state of things,
arising to this country from its neutralitv, du-
ring an unparalleled war in Europe, can we be jus-
tified in supposing such duties can be supported in
time of peace, and consumption suffer no diminu-
tion?
And if consumption suffers no diminution will
not the revenue be diminished by smuggling ar-
ticles into a country so favorable to smuggling,
and on which the duties are so high as to offer a
^od premium for the risk? Especially when
many articles are highly dutied, and are of great
yalue and small bulk. The gentleman from Vir-
ginia (Mr. Mason) supposes that my honorable
friend (Mr. Morris) has instructed the adventu-
rers of this country in the art of smuggling; he
may rely upon it^ tnat the art is in good forward-
ness, and stands m no need of instruction; the al-
lurement of high duties is too great not to be un-
derstood, especially when an extensive coast, un-
guarded in almost every part, invites to practice.
When contemplating this subject, very man^ facts
will crowd themselves upon the mind, tending to
a conviction that our revenue by impost must de-
crease.
I forbear to mention the uncommon supply
of dutiable articles on hand; the probability that
mercantile enterprise has brought many goods
into the country trom the expectation of drawback,
and from a variety of circumstances, exportation
has taken place without the drawback ; and many
other events similar in their effects, because this
Senate are under no necessity of information on
such obvious points, and because they have been
already urged in this debate, with great force and
conclusiveness.
If it be objected, that the result of all this must
leave the mind in doubt, and that demonstratioa
is not vet obtained ; I ask, if we ought to run the
hazara of giving up our internal taxes, if the event
is only doubtful? Under such circumstances, is a
sober, cautious Legislature justified in taking a
step like this ?
We have tried the experiment of internal taxes;
the obstacles of collection are all or nearly all .sur-
mounted ; and the people, as far as my in forma cion
tion^reaches, are becoming reconciled to them ; add
to all this, it is at least doubtful^ whether we can
as yet dispense with them, with safety to our pub-
lic faith. It is now a time of peace, and measures
already by law adopted to pay off the national
debt, can better now than at any other time, be
enforced. I should believe we ought to extend
the system of internal taxation, rather than abolish
those taxes already established. At any rate, is it
politic to adopt this repeal, before experiment shall
have informed us what the state of our impost
will be in time of peace? It has been said the
national debt was an enormous evil, and that to
pay it off the people would submit to almost any
temporary burdens. When peace has visited the
world, and we are in prosperous circumstances,
when our internal revenue can better be increased
than at any time, for many years past ; when our
expenses have been and are to be, we are told, les-
sened in every respect; why should we lose signt of
an object so desirable as that of increasing the
means of extinguishing the public debt, by calling
forth all the energies of the nation, for replenishing
our Treasury ? Instead of this ^e are to repeal the
system of internal taxation, trust our whole rev-
enue to the winds and the sea. and every other cas-
ualty to which human affairs are exposed. The
Secretary of the Treasury himself, does not cal-
culate upon a greater sum than nine millions and
a half tor the annual product of the impost. I
think it has been shown, that the amount will fall
far short of the sum ; but allowing that sum to be
realized; still our means will fall short of the ne-
cessary expenditure, the sum of $93,447 52 annual-
ly. How are we to get along with such a deficit 7
and this too with no allowance for contingencies.
The answer is plain, our debt must accumulate,
or some of our necessary institutions must suffer.
This suffering I fear will fall upon our navy, and
leave our commerce literally to the winds. If we
permit these taxes to remain, and experiment
shows hereafteAhat we can do without tnem, the
repeal can be had at any time ; but once repeal
them, and what is to be the result, if experiment
shows we cannot do without them ? Can they be
revived ? No man will pretend a revival to be
practicable. Such a measure would shake its revi-
vers from their seats in both Houses of Congress.
After the people have once been told by a Legisla-
tive act, and that after an Executive recommenda-
tion, that the product of the internal taxes are not
wanted, it will be a hard matter to convince them
that a necessity exists for their revival. If they
can ever be peaceably cbUected, it must be by re-
sisting the unfounded opinion now, that they can
safely be abandoned.
241
HISTORY OF CONGRESS.
242
March, 1802.
Intemnal Taxes,
Senate.
Permit me now sir. to make a few observatioDs
upon the general subject of internal taxes. I know
it has been said, that excises are odious to a free
people^ and that a part, at leant, of those now to be
abolished are peculiarl y od ious. In addition, it has
been said, that the cost of collection is very great,
and a useless number of Executive dependants are
employed as excise officers. I believe all pecuniary
impositions are, and always will be, unpopular ;
but making a reasonable allowance for tnat gen-
eral disposition to part sparingly and reluctantly
from our money, I oelieve that a free people can
better pay a part of the support which they must
afford to the Government, by way of excise, than
to pay all by impost. And for tnis plain reason,
because, they can pay by excise much cheaper or
with less cost for collection, than by impost. To
avoid all dispute on the cost of collecting our in-
ternal revenue, let it be set at fifteen per cent., or
if you please at twenty. I ought to say here, that
by a judicious extension of the objects of stamps,
excise, dbc, I have no doubt but our internal rev-
enue could be collected for five per cent., probably
for less.
But, say it cost fifteen or twenty per cent.,
does not our impost collection cost much morei
The cost of collecting any tax is precisely that
sum, which the people pay, more than the sum
which is actually paid into the Treasury. Or, to
make my position plainer: if one hundred and
fifteen dollars are paid by those who use stamped
paper, parchment, and vellum, in one yea/, and the
expense paid to officers, &c., is fifteen dollars, then
one hundred dollars is the net revenue, and fif-
teen dollars the cost of collection. Or, in other
words, if one hundred dollars are paid by all those
who ride in pleasure carriages for one year, and
after deducting all expenses of collection eighty-
five dollars are paid into the Treasury on account
of that tax, then the cost of collection is fifteen per
cent.
One thousand dollars worth of ^oods are im-
ported, of the kind' which are dutied at ten per
cent, ad valorem ; the duties to be paid into the
Treasury by the importer are one hundred dollars.
The importer pays this sum. but, after deducting
collector's fees, dec, the sum paid into the Treasury
upon these goods, is but ninety-five dollars. Then
the public hare received on one thousand dollars,
ninety-four dollars. Let us see how much the
consumer of these goods pays for collecting the
duty. The importer has pieiid one hundred dollars,
on this sum he puts his profit, when he sells the
goods, say twenty per cent., that will make the ad-
dition for the consumer to pay, and it is easily dis-
cerned, that the sum will be one hundred and
twenty dollars; the retailer (if there be but one
more purchaser before the consumer, but in many
instances there are two or three) puts on twenty-
five per cent, when he sells to the consumer, which
will be thirty dollars more ; making in the whole
one hundred and fifty dollars paid by the consumer,
when the Treasury receives but ninety-five dol-
lars. The difference between ninety-five dollars
and one hundred and fifty dollars, amounting to
fifty-five dollars, is the sum which the duties on
one thousand dollars worth of imported goods costs
for collection. When there are no duties, the con-
sumer would receive this one thousand dollars worth
of goods for one hundred and fifty dollars less, and
ail the merchants concerned would receive the
same or a proportional profit. T he public recei ves
but ninety-five dollars, and for this consideration
the consumer pays fifty-five dollars, which is cer-
tainly the cost of collection ; and that is between
fifty-seven and fifty-eight per cent. That those
who live in the interior oi the country pay more
than those on the sea-coast, for collecting the im-
post, is obvious, from a well known fact, that
the goods pass through more hands before they
reach the consumer, all of whom will put on a
profit.
If these statements are correct, is it not demon-
strated that the imputation on excises, for the
great cost of collection, is unfounded ? In case of
excise, the consumer pays but one officer for col-
lection; in the case oi impost, a great number
must be paid. Are there four or five hundred offi-
cers of excise all of whom are checked by law ?
There are thousands of officers of impost, a great
fro portion of whom are under no legal restraint,
t is fallacious to flatter ourselves that there are
but fifty or sixty officers of impost whose fees are
limited ; there is a host of them, self-created and
under no limitation. The question may readily
occur, what then shall be done? The answer is
easy, regulate your impost, let the duties be rea-
sonaole, to avoid smuggling, and so reasonable as
not to prevent consumption ; increase your excise
in objects and sum, and let both proceed toge-
ther, and a greater sum of revenue, than hereto-
fore, can be raised, and with less oppression to
the people. This was the system ot those who
have been in power, and it will force itself upon
those in power, or they will be forced out. Unless
your excise is kept in co-operation with your im-
post, the latter will become intolerable and in-
efficacious. Especially when an attempt is made
to raise by it so great a sum as will be requisite
for our national exif^encies. That a dangerous
Execulive patronage is established by the appoint-
ment of excise officers, is to me an assertion so
contrary to my knowledge of the facts, that I can
scarcely believe it deserves a serious answer ; but
to preserve decorum in debate, my reply to that
objection against internal taxes is, that so far as I
am acquainted with the subject, the Executive
has rather been weakened, by the appointment of
those officers ; and I can discern no prospect of a
dangerous accumulation of power, from the ap-
pointment of excise officers, and before I will con-
sent to remedy an evil, I must be convinced that
an evil exists.
It is objected further against excises, that the
system oi espionage and oaths resulting from it,
is destructive of the peace of society and of mor-
als. Mr. President. I will not detain the Senate
to hear a detail of tacts upon these subjects; but
I have searched the statutes respectinff impost and
excise, and believe if any man will do the same,
it will be found that espionage and oaths are more
dangerously produced oy the former than the lat-
243
HISTORY OF CONGRESS.
244
Senate.
Internal Taxes,
Mabch. 1S02.
ter. The truth is, that Government implies force
on the one part, and obedience on the other ; and
it is easy to discern in its most favorable opera-
tions that a clamor can be made against it, espe-
cially that necessary part which takes from the
people money to support it. No system of taxa-
tion under heaven can be carried into effect, with-
out coercing the immoral, and sometimes bearing
hardly upon inability itself; suffice it to say, that
excises are as unexceptionable in their nature as
any mode, and for a country like ours, probably
the most unexceptionable.
I hope no member of this Senate can be actua-
ted in his vote upon this subject by any engage-
ments to his constituents — that at all hazards the
internal tax should be abolished. I cannot .be-
lieve any member is under such engagements; if
there sHould be axiy, I am confident that silence
to him will be as efficient as argument. But we
are told, the members of the Legislature ar^ not
at liberty to act themselves upon this occasion ;
that the Executive message at the commence-
ment of the session has already, in effect, repealed
the laws laying these taxes, and that a collection
of them, after the people have been told by the
President that they are not wanted, is impractica-
ble. We are told further, that the same opinion
is entertained in our financial department. As to
the last, if a candid attention is given to the re-
port of the Treasury Department, no recommen-
dation to abolish the internal taxes can be found,
but rather a contrary opinion seems to be indi-
cated.
I acknowledge, and with regret, that the Presi-
dent has been unequivocal, and presume it will
have great weight with the people, thinking, as I
do, that the effects will be pernicious. I can but
say, that the closet philosopner is more discernible
in this recommendation than the politician. I
accuse no man of acting upon this occasion with
undue reference to popularity ; if it be possible
that such a motive could be indulged even for a
moment, I am convinced that the time is at hand,
when not a rock or mountain can be found in the
sterile field of popularity, to hide such an one from
the wrath of those very people whom now he
thinks to flatter.
The time will arrive, and that speedily, when
our public exigencies will require additional rev-
enue. Can you rely on a land tax 1 Can you
increase your impost ? Can you reinstate the in-
ternal taxes'? To all these interrogatories the
answer is, no!
I hope 1 am mistaken in the consequences which
I predict, as I sincerely wish this country may
prosper in peace and quietness. Were I actuated
by party motives only, I should rejoice at this
measure. Let the internal taxes so, and you that
abolish them^. prepare to go with tnem, for " be ye
also ready." is stamped upon the measure in char-
acters too legible to be mistaken. This, it will
be remarked, is spoken in reference to a firm be-
lief, that we cannot support our public faith if we
abolish these taxes. But, sir, I hope and believe
my motives are above all party considerations.
How long I am to continue in life I know not. 1 1
am admonished by ill health of its frailty ; but
sir, I am fully convinced of the fatal tendency of
this repeal to the happiness of this rising country;
therefore it is, that I. oppose it, regardless of any
popular, unfounded opinions, which may seem to
militate against excises or internal taxes.
The solemnity of the pledge which has been
made of these taxes, by the laws originating them,
is worthy of observation. They have been pledged
for the redemption of the public debt, and every
creditor of the United States has an interest in
the pledge, which cannot be trifled with. The
gentlemen who favor the repeal say, that although
true it is, these taxes were pledged, yet we have a
redundancy of funds which are likewise pledged,
and therefore to withdraw the internal taxes can
be no breach of faith.
I am free to acknowledge, Mr. President, that
our funds can be in such a condition ; for izistance,
should we proceed successfully for eight years in
extinguishing principal as well as interest of our
debt; there would then remain no Dutch debt, and
a large portion of the principal of our domestic
debt would be paid ; in such case to say no funds
however redundant could, consistently with $;ood
faith, be released, because originally pledged till
the whole debt was paid, would in my mind be
unreasonable. But if my calculations are correct,
or anywhere near it, we have no right to presume
on a present redundancy of funds, and the obliga-
tion contained in the appropriation of these inter-
nal taxe^ recurs with all its force and solemnity
against the repeal. When we take a view of tke
state of Europe, still agitated, though tending to
a state of quietude ; the condition of the West
Indies, and the condition, as it speedily will be, of
Louisiana ; when all calculations of revenue from
impost are so uncertain as to amount, and the ex-
penses which await us still more uncertain ; espe-
cially when we look at the Barbary Powers, I ask
gentlemen not to give away a source of revenue
already productive^ and which may be easily
made more productive, and not to run the hazard
of violating our public faith, when a fev years,
perhaps a few months, may place us in a situation
where certainty may be ootained.
The tax upon pleasure carriages, upon loaf su-
gar, and that of stamps, are so benencial to the
public, and fall so lightly, if at all, upon the labor-
ing and poorer classes of people, that I should re-
luctantly give them up ; and I am strongly im-
pressed with the idea, that the tax on domestic
distilled spirits and stills, is calculated to promote
niorality, as well as to raise a revenue. In a word,
sir, I believe policy and national faith unite in re-
jecting the repeal.
Mr. Jackson, of Georgia, said he considered the
internal taxes as impolitic and iniquitous when
laid ; the New England States paid no excise on
their orchards, as cider was not taxed ; but all the
orchards at the southward were, which consisted
chiefly qf peaches ; this was unequal, and of this
the people at the southward complained. He be-
lieved the recommendation of the virtuous Jeffer-
son was sufficient authority to act upon in repeal-
ing those laws. Besides, the savings we had
245
HISTORY OF CONGRESS.
246
March, 1802.
Interned Taxes,
Senate.
made already, in the reduction of the army, would
amount to a greater sum than ihe whole amount
of the internal taxes. [Here Mr. Jackson turned
to the estimates of the army expenditure for 1801,
and stated that more than $900,000 was saved by
that alone.] The gentleman from Connecticut
(Mr. Tracy) has asked us, said Mr. J., where can
we resort for taxes if we should be mistaken ; and
by this repeal there should be a deficit of revenue ?
I can tell the gentleman we can tax stock of all
kinds, bank stock, and all other stock. I see not
why ^eat estates, made in a moment by specula-
tion, should not bear apart of the public burdens, the
holders are now like drone bees, sucking honey
oat of tfie hive, and affording no aid in its pro-
curement. This is my opinion, and I care not
who knows it.
Mr. Tracy said he could inform the honorable
gentleman from Creorgia, that the New England
orchards were taxed, as great quantities of cider
were annually distilled into brandy, so that the
inequality suggested by the gentleman was ideal,
and not founded in fact. He said further ; he had
expected, if the internal taxes were abolished, that
the same principle which had done this, would
lead the gentleman to tax the funds, as this would
be a certain and easy way to pay oiST the public
debt. But he acknowledged, after all the profes-
sions of those in power, to treat public credit in a
cautious and sacred manner, he did not expect, so
soon, an avowal of those principles.
Mr. Datton, of New Jersey, said he was aston-
ished that such assertions were made to the Sen-
ate, as fell from the honorable gentleman last up,
(Mr. Jackson,) respecting the savings bv the late
reductions of the army. The utmost that could
be pretended, was not more than $200,000, he be-
lieved not $100,000. The Secretary of War had
said, in a very definite manner, that the saving
mignt be $500,000, more or less ; but when an es-
timate is made for an establishment, an army for
instance, the army is supposed to be full ; and an
allowance is also made for losses and contingen-
cies ; every gentleman in the Senate knew that
the actual expense paid for our army in 1801,
would exceed but a little, the annual sum which
must be expended this year? What have we
done? said Mr. D.; a few soldiers and a very few
officers hai^e been dismissed, and 'it is mocking to
the public and deceiving ourselves, to pretend
such great savings have been made by this reduc-
tion of the army.
Mr. Ross was sensible, the more this subject
was examined the more reason would be discov-
ered for gentlemen who favored the repeal, to re*
tract their opinions. There was an express en-
gagement, under all the solemnities of a law of
the Government, that the taxes on stills and do-
mestic distilled spirits, should forever be appro-
priated, while a debt existed, to the payment of
that debt and the interest upon it ; and tnat there
should be no power to repeal this pledge without
substituting other adequate funds to those removed.
This is represented in all the successive laws on
this subject, which places the obligation in a more
striking point of view. Now gentlemen say we
will repeal the whole at one stroke, and substi-
tuie what? Nothing.
The Government have received loan after loan,
and repeated promise after promise ) yet, upon the
spur of the occasion, they retract all their prom-
ises, or repeal the laws which contain them ; and
seem to suppose such conduct will have no in flu-
ence on public credit. What would, he asked, be
the case of an individual who thus trifled with his
creditors? What will our creditors at home think,
and especially creditors abroad ? This debate is
in the presence of foreign Ministers, and the de-
claration goes forth to the world, that the Govern-
ment of the United States will revoke its prom-
ises, however solemnlv made, ad libitum; and
this, because new men have come into power, who
say. We have money sufficient to pay our debts,
and what signify pledges! We did not make
them ; let those who made them look to them.
No, sir, said Mr. R., our credit is gone if this bill
passes ; no man will trust you again ; you may
withdraw future pledges as well as these ; and 1
would not trust a cent to the engagement of such
a Governmeot. The present majority have gone
on repealing, till we have almost nothing left to ~
repeal. These duties are solemnly pledged, and if
you can abolish them, without a substitute, I re-
peat it, your national faith is violated^ it is gone,
It is not worth a cent. A gentleman, high in point
of ability and standing in his representative capa-
city, (Mr. Jackson,) tells the Senate that the pub-
lic creditor may be taxed. [Here Mr. J. said it
was a sentiment of his own, and he repeated it.]
Mr. R. said, let us examine it ) instead of pay-
ing the money you borrow, you tax your creditor
a fi^iven sum annually, till it is all swept ofi", and
call this a payment of debts^ and sacred preserva-
tion of public faith. He said he did not own any
stock 01 any kind, and believed he never shoulcl,
in this situation of public affairs ; therefore, he
was interested only to establish public credit for
the benefits it would afford to Government itself.
Mr. Anuerson, of Tennessee, said he could not
conceive why] gentlemen should lay such stress
upon appropriations, inasmuch as our other funds
were sufficient to make good all our engage-
ments.
Mr. Morris. — Mr. President, the gentleman
last up has brought forward in full, and the honor<^
able member from Virginia, (Mr. Mason.) in
part, a very extraordinary argument. And yet
the gentleman from Tennessee expresses his sur-
prise that we do not at once perceive the force of
it, and agree with him that our faith pledged re-
mains inviolate, because a reduction of $650,000
in our revenue is fully equalized by a similar re-
duction in our expenses. Lei this argument be
examined in each of its parts. First, he- has as-
sumed that $650,000 at least are savea by the re-
duction of the Military Establishment? But in
what is that saving? In paper there is no real
saving to that amount, or to anything like it.
The gentlemen must find themselves hard pressed
indeed when they are obliged to recur to the es-
tablishment voted, as the expense incurred, know-
ing as they do that there is a wide difference.
247
HISTORY OF CONGRESS.
248
Senate,
Internal Tcures,
March, 1B02
They know that the army voted was not raised.
They know the establishnient was never com-
plete. They know we have almost as many
soldiers in our service now as we had before, and
that all their boasted economy resolves itself into
the dismissal of a few officers. The second point
of this curious argument shall not be disputed.
We readily admit the internal revenue to be full
$650,000. But now for the conclusion from these
premises : We justify repealing a tax we had prom-
ised not to repeal, because we make a saving to
the same amount. We had reserved to ourselves
the right of repeal, on condition that we should
lay an equivalent tax; and a vote to save money
comes to the same thing as a tax. Does it, in-
deed? Do you suppose your creditors will be the
dupes of this new-fangled logic? When you took
your engagements with them, was there any stipu-
lation that you should he released from it, pro-
vided you should make a vote of saving. Was
it not always understood that your expenses
should be reduced as far and as fast as circum-
stances would permit, and that your whole surplus
revenue should be applied to the payment of your
debts? Have you not absolutely mortgaged that
surplus to this effect? And can you release your-
selves by a vote of saving?
The nonorable member from Tennessee went
on to express his surprise, that, not liking this
plan, we do not come forward to propose amend-
ments. And what have we to do witn it? These
gentlemen have charged themselves with the con-
duct of our affairs. They do not deign to ask our
opinion on the measures they mean to pursue.
Supported by a powerful majority, they do just
what they please; and when they nave brought
forward bad plans, why then forsooth they ask us
to mend them. But how mend them ? We say
that to ameliorate the system of our revenue the
duties ought to he lowered ; and that you should
raise sums equivalent to the reduction by internal
taxes. The gentlemen tell us they will have no
internal taxes. This is their plan, and they call
on us to mend it.
I have noted several things which were said by
the gentleman from Virginia, but I will not tres-
pass on the patience of this Senate by a particular
reply. Indeed I do not conceive it to be neces-
sary. The whole scope of his argument, like that
of his friend from Tennessee, resolves itself into
a reliance on the opinions and calculations fur-
nished by the Secretary of our finances. The
gentleman from Virginia has told us, that they
are better fitted for consideration in our closets,
than for debate on this floor. Be it so. He finds
it difficult to follow, in argument, statements
which vary from or contravert what the Secre-
tary has advanced. This may be the case. He
tells us, we must stick to the report; that it has
been long in our possession, and that gentlemen
fully understand it. Perhaps they do. He says
they have made up their minds on this subject.
I suppose they have. In fine, he triumphantly
read to us a section of the Secretary's report, from
the first page, to prove that the Treasury has re- 1
ceived from duties the year eighteen hundred and I
one, ten million and a half of dollars ; and that
had things gone on in the same train, the duties
payable this year would have amounted to eleven
millions. Hence he infers that the estimate of
nine millions and a half for some years to come
is quite moderate. I will, sir, since it is insisted
on, confine myself strictly to this same report. I
pray gentlemen, then, to take the trouble of look-
ing at tfie table (I,) and to follow me in a few ob-
servations, which shall be so clear and so simple
as to avoid all difficulty.
They will be pleased in the first place to ob-
serve, that this table purports to be a ^'statement
' exhibiting the ac^uoZ amount of duties which ac-
' crued on merchandise and tonnage, and of the
^ actiuil payments for drawbacks on foreign mer-
^ chandise, for bounties and allowances, and for
' expenses of collection during each of the years
' 1790 to 1799." They will particularly observe,
that the word actiud is printed in italics, so as
to call our special attention to this table as con-
taining a statement of facts in contradistinction
to theory. An account of what actually happened,
and not an estimate of future contingencies found-
ed on hypothetic calculation.
Gentlemen will have the goodness to look to-
wards the bottom of this table for the years 1797.
1798. and 1799. They will find that the amount
of duties, was
In 1797 - - $12,866,984 69
In 1798 - - 11,402; 185 17
In 1799 - - 15,251,952 68
Together -
That the tonnage was
39,521,122 5i
In 1797
In 1798
In 1799
103,665 20
107,253 88
128.698 39
Together -
That the passports produced
In 1797 - - 13,886 00
In 1798 - - 9,978 00
In 1799 - - 12,518 00
Together -
Making a total of
339,617 4:
36,382 m
39,897,122 01
They will take notice that there was paid for
drawbacks and debentures
In 1797 - - 4,207,728 43
In 1798 - - 4,799,498 27
In 1799
5,780.662 72
Together -
And for bounties and allowances
14,787,889 42
In 1797
In 1798
In 1799
92,874 29
113,904 42
149,375 02
Together
356,153 73
Total of payments was 15,144,043 15
249
HISTORY OF CONGRESS.
250
April. 1802.
Internal Taxes.
Senate.
Which deducted from the receipts
leaves a balance of - - - 24,753,078 86
Finally they will see that the
expensed of collection were
In 1797 - - 342,696 22
In 1798 - - 375,879 33
In 1799
414,618 45
Together -
1,130,194 04
Deducting therefrom the expenses
from the gross revenue, there re-
^ mains a net balance of' - - 23,622,884 82
And dividing by three we have 7,874,294 94
for the average net produce of duties, tonnage, and
passports, during the last years of which you have
a true account.
Now, sir, it will, I think, be acknowledged that
in this calculation there is no difficulty. In this
plain state of the fact there is nothing intricate.
This is one of the tables on which gentlemen have
had time to meditate in their closets. It can be
understood with the utmost ease. Here is no
supposition, no rule of proportion, but mere addi-
tion and subtraction; and from this, which the
Secretary has sent you as the thing to be relied
on, as the actual state of your revenue, it appears
that during the years 1797, 1798, and 1799 you did
not receive four and twenty millions. Yesterday
I had the honor of stating at large to the Senate
my reasons for believing that we could not safely
consider this part of our revenue as yielding more
than eight millions annually. The most favorable
estimate I could make fell a little short of that
sum. I explained also my reasons for believing,
that it would not for some time to come increase ;
and for apprehending that it might suffer no small
diminution. The honorable gentleman from
Virginia, however, tells you that my arguments
and my calculations must be disregarded. Be
it 80. He bids you stick to the report of your
Secretary. Acreed. He says you must ground
your faith on tne statements of that officer. Con-
tent. And when you examine that part of them
which deals not in splendid conjecture but in so-
ber fact, what is the result ? It is, that your an-
nual revenue was not quite seven millions ei^ht
hundred and seventy-five thousand dollars, durine
the three years of greatest consumption, which
you have any actual account of; being full one
nundred and twenty-dve thousand dollars short of
that which I was willing to take as the existent
amount. Let then what I have said go for nothing^,
and bring the argument to this short issue, is
there any good reason to believe that during eight
years to come your duties on imports and tonnage
will yield annually sixteen hundred thousand dol-
lars more than in the years 1797, 1798, and 1799?
This may happen, sir, but I do not believe it.
Mr. Nicholas, of Virginia, said, he did not
believe the eeutleman from Pennsylvania (Mr.
Ross) thoueht the majority had any intention of
sweeping otf the public debt in any other way,
than oy bona fide payixient. As to the pledge so
much talked of, it was nothing more, in his opin-
ion, than a declaration that there should always
be funds in readiness sufficiently large to meet our
engagements. The gentleman from Connecticut
^Mr. Tracy) had, he thought, placed this sub-
ject on a fair footing. He asked whether gentle-
men meant to carry their principles so far as to
tie up the hands of all future legislatures by every
appropriation they made? He would add that
since the pledge of the internal taxes, we had
greatly increased our impost, and pledged that. for
the same purposes, of paying principal and inter-
est of the public debt; would not this operate as
an equitable release of these taxes? Mr. N. be-
lieved his own assertion was as good as that of
another, and he supposed our revenue without
these taxes would be amply sufficient for every
national purpose, therefore he should vote for the
repeal.
Mr. Ross said, he could not ascertain what was
the general intention of gentlemen as to taxing
the public debt, but one ofthe majority had open-
ly declared his opinion in favor of it; and the *
journals would show that a gentleman who was
not now a member of the Senate, but high in the
confidence of the majority, TMr. Chas. Pinckney,)
when he was a member, laid upon the table a law
authorizing the taxation of public stock; it was
true it did not pass, and was probably not called
up by the mover; but he left every one to decide
on the appearance which these proceedings had.
and if they did not put at hazard the security oi
our public creditors. Mr. R. said he would add
one word as to the pledge. The laws passed in
1791, 1794, and 1795. in which the promise was
solemnly made and repeated ; and in 1798 the
surplus of all our revenue, arising from impost,
tonnage, and internal taxes, was pledged for the
payment of our debts.
On the question, Shall this bill pass as amend-
ed? it was determined in the affirmative — yeas
15, nays 11. as follows:
YxA9— Messrs. Anderson, Baldwin, Bradley, Breck-
enridge, Clinton, Cocke, Colbonn, Elleiy, T. Foster,
Franklin, Jackson, Logan, 8. T. Mason, Nicholas, and
Sumter.
Nats — Messrs. Dayton, D. Foster, Howard, J. Ma-
son, Morris, Ogden, Olcott, Ross, Tracy, Wells, and
White.
So it was Resolved^ That this bill do pass as
amended.
TeuRsnAY, April 1.
Mr. S. T. Mason, from the committee jo whom
was referred, on the 15th March last, the bill for
the relief of the Marshals of certain districts
therein mentioned, reported it without amend-
ment.
The bill, entitled ** An act making: an appropria-
tion for defraying the expenses which may arise
from carrying into effect the convention made be-
tween the United Stales and the French Repub-
lic, was read the third time, and passed.
The bill, entitled ''An act making a partial ap-
propriation for the support of Government during
the year one thousand eight hundred and two,''
was read the third time, and passed.
251
fflSTORY OF CONGRESS.
252
Senate.
Proceedings,
April. 1S02
The Senate took into consideration the amend-
ments reported by the committee to whom was
recommitted the bill for revising and amending
the acts concerning naturalization; and having
adopted the amendments, and further amended
the bill,
Ordered^ That it pass to the third reading as
amended.
The Senate took into consideration the amend-
ments reported by the committee to the bill sup-
plementary to the act, entitled ^^An act for the
encouragement of learning, by securing the copies
of maps, charts, and books, to the authors and pro-
prietors of such copies, during the time therein
mentioned ;" and haying agreed thereto,
Ordered^ That the bill pass to the third reading
as amended.
The bill, entitled " An act for the relief of Isaac
Zane," was read the third time, as amended, by
striking out the word " that," in the last line of
the second section.
Resolved^ That this bill do pass as amended.
A message from the House of Representatives
informed the Senate t|iat the House agree to some
and disagree to other amendments of the Senate
to the bill, entitled ^' An act for the rebuilding the
light-house on Gurnet Point, and for other pur-
poses "
j>
Friday, April 2.
The Senate resumed the second reading of the
bill for the relief of the Marshals of certain dis-
tricts therein mentioned.
Ordered^ That this bill pass to the third reading.
The Senate took into consideration their amend-
ments, disagreed to by the House of Representa-
tives to the bill for the rebuilding the light-house
on Gurnet Point, and for other purposes.
Ordered^ That the further consideration there-
of be postponed.
The bill for the more convenient organization
of the courts of the United States was read the
second time and amended.
Ordered^ That it be recommitted to Messrs.
Anderson. Bradley. Nicholas, and Jackson,
the original committee who brought in the bill ;
and that Mr. Breckenridge be added thereto in
the place of Mr: Brown, absent, further to consi-
der and report thereon.
The bill supplementary to the act, entitled "An
act for the encouragement of learning, by securing
the copies of maps, charts, and books, to the au-
thors and proprietors of such copies, during the
time therein mentioned," was read the third time
and further amended, by adding to the end of the
fourth section these words : " Provided always,
that, in every case for forfeiture^ hereinbefore
given, the action be commenced within two years
from the time the cause of action may harearisen."
And by filling the blanks in the first, second, and
third sections with the words " first" and ** Janu-
ary," respectively, and in the last section with the
words " one hundred."
Resolved^ That this bill do pass, that it be en-
grossed, and that the title thereof be " An act sup-
plementary to an act, entitled 'An act for tbe
encouragement of learning, by securing the copies
of maps, charts, and books, to the authors and pro-
prietors of such copies, during the time therein
mentioned,' and extending the benefits thereof to
the arts of designing, eneraving, and etching hW-
torical and other prints."
Saturday, April 3.
The Senate took into consideration their amend-
ments, disagreed to by the House of Representa-
tives, to the bill for tbe rebuilding the light-house
on Gurnet Point, and for other purposes. '
Resolved, That they do recede from the amend-
ments disagreed to, and concur in the amendments
of the House of Representatives to their amend-
ments on the said bill.
The bill, entitled "An act for revising and
amending the acts coi^cerning naturalization/'
was read the third time, and the fourth article of
the first section was amended by striking out. af-
ter the words " 1795 may," these words: ** within
one year after the passing of this act;" and afier
^'on," in the following line, by striking out ^hii
declaring on oath or affirmation in," and inserting
"due proof made to;*' and after "'least," in the
next line, by inserting "immediately preceding
his application ;" and after the word " held," "and
on his declaring on oath or affirmation ;" and Id
the last line of the original bill by substituting the
word " naturalized" for " admitted :" and,
On the question. Shall this bill pass as amended-
it was determined in the affirmative — yeas IS.
nays 8, as follows :
Yeas — Messrs. Anderson, Baldwin, Bradley, Breck-
enridge, Clinton, Cocke, Colhoun, EUeiy, T. Foster,
Franklin, Jackson, Logan, S. T. Ma3on, Morris, Nich-
olas, Ross, Sumter, and White.
Nats — Messrs. Dayton, D. Foster, Howard, J. Ma-
son, Ogden, Olcott, Tracy, and Wells.
Resolved, That this bill do pass as amended.
A message from the House of Representatives
informed the Senate that the House have passed
a bill declaring the assent of Congress, to an act
of the General Assembly of Virginia, therein men-
tioned, in which they desire the concurrence of
the Senate.
The said bill was read and ordered to a second
reading.
The bill, entitled "An act for the relief of the
Marshals of certain districts therein mentioned/
was read the third time, and passed.
Monday, April 5.
Mr. Anderson, from the committee to whom
was recommitted, on the 2d instant, the bill to
provide for the more convenient organization of
the Courts of the United States, reported amend-
ments, which were read.
Ordered, That they lie for consideration.
The Senate resumed the third reading of the
bill, entitled "An act to repeal in part the act, en-
titled ^An act regulating foreign coins, and for
other purposes."
253
HISTORY OF CONGRESS.
254
April, 1802.
Proceedings.
Senate.
The bill deciariag the assent of CoD^ress to an
act of the Greneral Assembly of Virginia, therein
mentioned, was read the second time, and referred
to Messrs. Nicholas, Stone, and Clinton, to
consider and report thereon.
Ordered^ That the farther consideration there-
of be postponed.
Tuesday, April 6.
Mr. Bradley presented the petition of Elijah
Brainard, a disabled soldier daring the Revolu-
tionary war, and praying relief.
Ordered^ That tne petition be referred to
Messrs. Bradley, Anderson, and D. .Foster, to
consider and report thereon.
On motion, that it be
Resolved, That be a committee, to join with
such committee as the House of RepresentatiTes may
appoint on their part, to consider and report what busi-
ness is necessary to be done by Congress in their pres-
ent session, and when it may be expedient to close the
same:
Ordered^ That this motion lie for consideration.
The Senate took into consideration the amend-
ments reported by the committee to the bill to
provide for the more convenient organization of
the Courts of the United States; and, having
agreed thereto.
Ordered, That this bill pass to the third reading
as amended.
On motion, that it be
Resolved, That a committee be appointed to inquire
whether any, and, if any, what, provisions and regula-
tions are necessary in addition to the several acts pro-
viding for the sale of the lands of the United States,
and that the said committee have leave to report by bill
or bills:
Ordered, That this motion lie for consideration.
Mr. T. Foster, from the committee to whom
was referred, on the 29th of March last, the bill to
revive and continue in force an act, entitled "An
act to augment the salaries of the officers therein
mentioned," passed the 2d day of March, 1799, re-
ported it witnout amendment.
A message from the House of Representatives
informed the Senate that the House have passed
a bill further to alter and establish certain post
roads; also, a bill for the relief of Paolo Paoly;
in which bills they desire the concurrence of tne
Senate.
The bill first mentioned in the message above
recited was read, and, by unanimous consent, was
read a second time, and referred to Messrs. Jack-
son, Bradley, and Franklin, to consider and
report thereon.
The bill for the relief of Paolo Paoly was read
the first, and, by unanimous consent, a second time,
and referred to Messrs. Bradley, D. Foster, and
Wells, to consider and report thereon.
The committee to whom was referred the letter
of Simon Willard to the Secretarjr of the Senate,
relative to a clock made by the said Willard for
the use of the Sepate, reported a letter from* John
E. Rigden, a watch and clock maker of this city,
which declares, as his opinion, that five hundred
dollars will be an ample and liberal reward for
such a time-piece; and the committee recommend
the following resolution :
Resolved^ That Simon Willard be paid, by the
Secretary of the Senate the sum of five hundred
dollars for an eight-day clock, set up in the Senate
room, and purchased of him. agreeably to a reso-
lution of the 25th of February, 1801, to be defray-
ed out of the contingent fund.
And the report was adopted.
On motion, that it be
Resolved, That the Secretary of the Navy be request-
ed to prepare and lay before the Senate a statement of
the expenses actually incurred in support of the corps
oi marmes for the last year, distinguishing the number
and expenses of the. officers of each grade :
Ordered^ That this motion lie for consideration.
The Senate resumed the consideration of the
bill regulating foreign coins; and
Oraeredj That it be postponed to Monday next.
The motion made on the 29th of March, for a
statement from the Secretary of War, was re-
sumed, and sundry amendments proposed; and on
motion, it was agreed that the further considera-
tion thereof be postponed.
Wednesday, April 7.
A message from the House of Representatives
informed the Senate that the House of Represent-
atives have passed a bill, entitled "An act for the
relief of Thomas K. Jones," in which they desire
the concurrence of the Senate.
The bill was read the first time, and, by unani-
mous consent, had a second reading.
Ordered, That it be referred to Messrs. J. Ma-
son, Dwioht Foster, and Oqden, to consider and
report thereon.
Mr. J. Mason, from the committee to whom
was referred, on the 30lh of March last, the bill to
amend an act, entitled ^*An act to retain a further
sum on drawbacks, /or the expenses incident to the
allowances and payment thereof, and in lieu of
stamp duties on debentures," reported it without
amendment.
Ordered, That this bill pass to a third reading.
Mr. Nicholas, from the committee to whom
was referred, on the fifth instant, the bill declaring
the assent of Congress to an act of the Qeneral
Assembly of Virginia therein mentioned, reported
it without amendment.
Ordered, That this bill pass to a third reading.
Mr. Franklin, from the committee to whom
was referred, on the 29th of March last, the bill in
addition to an act, entitled "An act in addition to
an act regulatingthe fi^rants of land appropriated for
military services, and for the Society of the Uni-
ted Brethren for propagating the Gospel among
the Heathen," reported it without amendment.
On motion, it was agreed to amend the bill, by
adding the word "heretofore," fourth section, line
first, after the word ^' certificates."
Ordered, That this bill pass to the third read-
ing as amended.
Mr. Ogden presented the petition of Jonathan
Snowden, a lieutenant in colonel Lee's legion dur-
255
HISTORY OF CONGRESS.
256
Senate.
Proceedings,
April, 1802.
ing the Revolutionary war. and a captain in the
army late under the command of General St. Clair,
wounded in the public service, and praying to be
put on the pension or half-pay list; and the peti-
tion was read.
Ordered^ That it be referred to Messrs. Brad-
ley, Anderson, and Dwight Foster, the com-
mittee appointed on the petition of Elijah Brain-
ard, the 6th instant, to consider and report thereon.
The Senate resumed the second reading of the
bill to revive and continue in force an act, entitled
^*An act. to augment the salaries of the officers
therein mentioned," passed the second day of
March, 1799.
On motion, to amend the bill, by striking out,
from the word "assembled," in, the second line,
to the end of the bill, and insert:
»<
That in lieu of the salaries at present allowed by
law to the officers of the Government of the United
States herein mentionedi the following annual compen-
sations be, and are hereby, granted to the said officers
respectively, from the , that is to say : The Secre-
tary of State, $ ; the Secretary of the Treasury,
$ ; the Secretary of War, $ ; the Secrctiry of
the Navy, $ ; the Attorney General, $ ; the
Comptroller of the Treasury, $ ; the Treasurer,
$ ; the Auditor of the Treasury, $ ; the Com-
missioner of the Revenue, $ ; the Register of the
Treasury, $ ; the Accountant of the War Depart-
ment, $ ; the Accountant of the Navy Department,
$ : the Postmaster General, $ ; and the As-
sistant Postmaster General, $-
"Sec. 2. And he it further enacted, That this act
shall continue in force for , and no longer;"
It passed in the negative — yeas 9, nays 16, as
follows:
Ybas — Messrs. Dayton, Dwight Foster, Howard, J.
Mason, Ogden, Olcott, Ross, Wells, and White.
Nats — Messrs. Anderson, Baldwin, Bradley, Breck-
enridge. Brown, Clinton, Cocke, EUery, T. Foster,
Franklin, Jackson, Logan, Nicholas, Stone, Sumter,
and Wright.
Ordered, That this bill pass to a third reading.
The Senate took into consideration the motion
made yesterday on the subject of Western lands,
which, being amended, was agreed to as follows:
Resohed, That a committee be appointed to in-
quire whether any, and, if any, what, provisions
and regulations are necessary in addition to the
several acts providing for the sale of the lands of
the United States northwest of the river Ohio, and
that Messrs. Brown, Ross, and Franklin, be the
committee, and that the said committee have leave
to report by bill or bills.
On motion, that it be
Resolved, That a committee be appointed to examine
and report what regulations ought to be adopted re-
specting the lands claimed by the United States within
the State of Tennessee, and that the said committee do
report by bill or otherwise :
Ordered^ That this motion lie until to-morrow,
for consideration.
Thursday, April 8.
Mr. J. Mason, from the committee to whom
was referred, on the 7th instant, the bill entitled
"An act for the relief of Thomas K. Jones," report-
ed it without amendment.
Ordered, That this bill pass to a third reading.
The Senate took into consideration the motion
made yesterday, that a committee be appointed
to examine and report what regulations ought to
be adopted respecting the lands claimed by the
United States within the State of Tennessee
And, on the question, Will the Senate adopt this
motion ? it passed in the affirmative — yeas 21,
nays 3, as follows :
Yeas — Messrs, Baldwin, Bradley, Breckenridge,
Brown, Clinton, EUery, T. Foster, Dwight Foster,
Franklin, Howard, Jackson, Logan, J. Mason, Morris,
Nicholas, Ogden, Olcott, Ross, Stone, Sumter, Wells,
and Wright
Nats — Messrs. Anderson, and Cocke.
Ordered, That Messrs. Brown, Stone, Breck-
enridge. Ross, and Nicholas, be the committee.
The bill for the more convenient organization
of the Courts of the United States, was read the
third time, and amended, by adding at the end
of section 4th, line 80th, of the printed biU, the
words, " except as hereinafter excepted ;" and
between the 5th, and 6th, sections of the printed
bill, a new section ; and section 6th, line 4tn, after
the word '* circuit," insert "or district;" and line
6th. after " circuit," insert " and district." Section
11th, line 7th, original bill, before the word " jaror."
insert "petit."
And, on motion to strike out the 11th section
of the original bill, as amended, to wit:
" And be it further enacted. That there shall be ap-
pointed, by the President of the United States, from
time to time, as many general commissioners of bank-
ruptcy in each district of the United States as he may
deem necessary; and, upon petition to the judge of a
district court for a commission of bankruptcy, he shall
proceed as is provided in and by an act, entitled 'An
act to establish an uniform system of bankruptcy
throughout the United States,' and appoint not ex-
ceeding three of the said general commissioners, as
commissioners of the particular bankrupt petitioned
against; and the said commissioners, together with
the clerk, shall each be allowed, as a full compensatioQ
for their services, when sitting and acting under their
commissions, at the rate of six dollars per day for evexy
day which they may be employed in the same business,
to be apportioned among the several causes on which
they may act on the same day, and to be paid out of
the respective bankrupts' estate: Provided^ That the
commissioners who may have been, or may be, ap-
pointed in any district, before notice shall be given of
the appointment of commissioners for such district
by the President, in pursuance of this act, and who
shall not then have completed their business, shall be
authorized to proceed and finish the same, upon the
terms of their original appointment :" •
It passed in the negative — yeas 11, nays 15. as
follows .
Yeas — Messrs. Bradley, Brown, Dayton, Dwiglit
Foster, Howard, J. Mason, Ogden, Olcott, Rosa, Wells,
and White.
Nats — Messrs. Anderson, Baldwin, Breckenridge,
Clintbn, Cocke, EUery, T. Foster, Franklin, Jackson,
Logan, 8. T. Mason, Nicholas, Stone, Snmter, and
Wright.
257
HISTORY OF CONGRESS.
258
April, 1802.
Proceedings,
Senate.
And it was agreed to amend the title of the bill
as follows : "An act to amend the Judicial Sys-
tem of the United States."
And, on the question, Shall this bill pass, as
amended ? it was determined in the affirmative —
yeas 16, nays 10, as follows :
YsAB — Messrs. Anderson, Baldwin, Breckenridge,
Brown, Clinton, Cocke, EUery, T. Foster, Franklin,
Jackson, Logan, S. T. Mason, Nicholas, Stone, Sum-
ter, and Wright.
Nats — Messrs. Bradley, Dayton, Dwight Foster,
Howard, J. Mason, Ogden, Olcott, Ross, Wells, and
White.
So it was Resolved, That this bill do pass ; that
it be engrossed ; and that the title thereof be "An
act to amend the Judicial System of the United
States."
The bill, entitled " An act to revive and con-
tinue in force an act, entitled 'An act to augment
the salaries of the officers therein mentioned,'
passed the second day of March, one thousand
seven hundred and ninety-nine," was read the third
time.
On the question, Shall this bill pass? it was
determined in the affirmative — yeas 23, nays 3, as
follows :
Yeas — Messrs. Anderson, Baldwin, Bradley, Breck-
enridge. Brown, Clinton, Cocke, Dayton, EUeiy, T.
Foster, Franklin, Howard, Jackson, Logan, 8. T. Ma-
son, J. Mason, Nicholas, Ogden, Stone, Sumter, Wells,
White, and Wright.
Nats — Messrs. Dwight Foster and Olcott.
The bill, entitled "An act in addition to an act,
entitled ^An act in addition to an act regulating
the grants of land appropriated for military ser-
vices, and for the Society of the United Brethren
for propagating the Gospel among the Heathen,"
was considered.
Ordered, That it be postponed until to-morrow.
The bill, entitled ^^An act to amend an act, en-
titled ^An act to retain a further sum on draw-
backs for the expenses incident to the allowance
and payment thereof, and in lieu of stamp duties
on debentures," was read the third time, and
passed.
The bill, entitled "An act declaring the assent
of Congress to an act of the General Assembly of
Virginia therein mentioned," was read the tnird
time, and passed.
Mr. Bradley, from the committee to whom
wa^ referred, on the 6th instant, the bill, entitled
"'An act for the relief of Paolo Paoly," reported it
without amendment.
Friday, April 9.
The Senate resumed the second reading^ of the
bill, entitled "An act for the relief of Paolo Paoly."
Ordered, That this bill pass to the third read-
ing.
The Senate resumed the second reading of the
bill in addiHon to an act, entitled "An act in ad-
dition to an act regulating the grants of land ap-
propriated for military services, and for the So-
ciety of the United Brethren for propagating the
Gospel among the Heathen."
7th Con.— 9
I Ordered, That this bill be recommitted to Mes-
sieuro Franklin, Breckenridge, and Sdmter.
the original committee, further to consider and
report thereon.
The Senate resumed the consideration of the
resolution of the House of Representatives, of the
24th March last, authorizing the President of the
Senate and Speaker of the House of Representa-
tives to adjourn their respective Houses on the
second Monday in April ; and agreed that it should
be postponed.
The Senate took into consideration the motion
made oil the 6th instant, that a committee be ap-
pointed, to join with such committee as the House
of Representatives may appoint on their part, to
consider and report what business is necessary to
be done by Congress, in their present session, and
when it may be expedient to close the same;
and, having agreed thereto.
Ordered, That Messrs. Olcott, Breckenridge,
and Baluwin, be the committee on the part of the
Senate.
The bill, entitled "An act for the relief of Tho-
mas K. Jones," was read the third time, and passed.
A message from the House of Representatives
informed the Senate that the House have passed
a bill to enable the people of the eastern division of
the Territory Northwest of the river Ohio to form
a constitution and State Government, and for the
admission of such State into the Union, on an
equal footing with the original States, and for
other purposes; in which they desire the concur-
rence of the Senate. They agree to the amend-
ments of the Senate to the bill for revising and
amending the acts concerning naturalization, with
amendments; in which they desire the concurrence
of the Senate.
The bill first mentioned in the message was
read, and ordered to the second reading.
The Senate took into consideration the amend-
ments of the*House of Repre.^entatives to their
amendments to the bill last mentioned in the
message.
Rtsolved, That they do concur therein.
Mr. Bradley gave notice that he should, on
Monday next, move for leave to bring in a bill to
alter the term of the district court for the district
of Vermont, and for other purposes.
Mr. S. T. Mason gave notice that, on Monday
next, he should ask leave to bring in a bill respect-
ing the District of Columbia'
On motion, that it be
Resolved^ by the Senate and House of Represenia^
tives of the ifnited StcUes of America in Congrest aa-
aembUd, That the Secretary of State be, and he is here-
by, directed to cause to be printed copies of the
journal, deposited in his office, of the proceeciings of the
general convention which formed the Constitution ol the
United States, and to cause the same to be distributed
as the laws of the United States have heretofore been :
Ordered, That this motion lie for consideration.
Monday, April 12.
. A message from the House of Representatives
informed the Senate that the House have passed
259
HISTORY OF CONGRESS.
260
Senate.
Proceedings,
April, 1802.
a bill for the relief of Theodosius Fowler j also, a
bill for the relief of Paul Coulon ; in which bills
they desire the concurrence of the Senate.
The bill for the relief of Theodosius Fowler was
read the first, and, by unanimous consent, a second
time, and referred to Messrs. J. Mason, Breck-
ENRiDGB, and Ellery, to consider and report
thereon.
The bill for the relief of Paul Coulon was read,
and ordered to the second reading.
The bill to enable the people of the eastern di-
vision of the Territory Northwest of the river Ohio
to form a constitution and State Government, and
for the admission of such State into the Union on
an equal footing with the original States, and for
other purposes, was read the second time, and re-
ferred to Messrs. Franklin, Brauley, Dayton,
Brown, and Baluwin, to consider and report
thereon.
The bill, entitled "An act for the relief of Paolo
Paoly," was read the third time, and passed.
The Senate took into consideration the motion
made on the 9th instant, for printing the journal
of the proceedings of the general convention which
formed the Constitution of the United States, and
Ordered^ That it be postponed until Wednes-
day next.
Agreeably to notice given, on the 9th instant,
Mr. Bradley had leave to bring in a bill to alter
the sessions of the district court for the district of
Vermont, and for other purposes ; and the bill was
read, and by unanimous consent it was read the
second time. '
Ordered^ That it be referred to Messrs Bradley,
Oqden, and T. Foster, to consider and report
thereon.
The following motion was made by Mr. Clin-
ton, and seconded, and ordered to lie for consid-
eration.
Resolved, by the Senate and House of Representatives
of the United States of America in Congress assembledf
two-thirds of both Houses concurring, That the follow-
ing article be proposed to the Legislatures of the several
States, as an amendment to the Constitution of the
United States, which, when ratified by three-fourths of
the said Legislatures, shall be valid as parts of the Con-
stitution, to wit :
That in all elections of President and Vice President,
the persons voted for shall be particularly designated, by
declaring which is voted for as President, and which as
Vice President.
Agreeably to notice given on the 9th instant,
Mr. S. T. Mason obtained leave to bring in a bill
for establishing the Government of the Territory
of Columbia.
The bill was read and ordered to the second
reading
Mr. Brown from the committee appointed the
8th instantj on the subject of the lands of the Uni-
ted States m the State of Tennessee, reported the
following resolution; which was read, and order-
ed to lie for consideration :
Resolved, That the President of the United States be
requested to give directions to the Attorney General to
collect, digest, and report to Congress, at their next se's-
sion, such documents and other information relative to
the lands claimed by the United States within the State
of Tennessee, under a deed of cession from the State of
North Carolina, executed in December, 1789, as shall
best serve to exhibit the extent of the claims reserved by
the second condition expressed in said deed; andhov
far the said reservations have been satisfied: also* the
situation and probable quantity of said lands which may
be at the disposition of the United States, consistently
with the conditions of the said deed of cession, and with
existing treaties with the Indian tribes.
The Senate took into consideration the resolu-
tion of the House of Representatives of the 24th
March last that the President of the Senate and
Speaker ot the House of Representatives be au-
thorized to adjourn their respective Houses on the
12th inst.
Resolved, That they do agree thereto.
The Senate took into consideration the motion
made on the sixth instant, requesting the Secre-
tary of the Navy to prepare a statement of the ex-
penses of the Marine Corps ; and the motion was
amended and adopted as follows :
Resolved^ That the Secretary of the Navy be
requested to prepare and lay beiore the Senate ao
estimate of the expenses of the Marine Corps for
the last year, distinguishing the number and expense
of the officers of each grade.
The Senate resumed the third reading of thebiU.
entitled "An act to repeal, in part, the act, entitled!
'An act regulating foreign corns, and for other pur-
poses."
Ordered^ That th£ further consideration of this
bill be postponed until Monday next.
Tuesday, April 13.
Mr. Olcott, from the joint committee appoint-
ed, on the 9th instant, to consider what business
is necessary to be done by Congress in their present
session, and when it may be expedient to close the
same, made report ; which was read, and ordered
to lie for consideration.
The bill for establishing theGtovernmentof the
Territory of Columbia was read the second time
and referred to Messrs. S. T. Mason, Wright, and
Baldwin, to consider and report thereon.
The bill, entitled "An act for the relief of Pau!
Coulon," was read the second time, and referred
to Messrs. Franklin, Ellery, and Logan, to con-
sider and report thereon.
Mr. Franklin from the committee to whom
was recommitted, on the ninth instant, the bill in
addition to an act, entitled "An act in addition to
an act regulating the grants of land appropriated
for military services, and for the Society of the
United Brethren for propagating the Gospel among
the Heathen," reported amendments; which were
read, and ordered to lie for consideration.
The Senate took into consideration the motion,
made yesterday, for an amendment to the Consti-
tution of the United States.
Ordered, That the further consideration of the
subject be postponed until to-morrow.
The Senate took into consideration the report
of the committee, made yesterday, respecting the
lands claimed by the United States within the
State of Tennessee.
261
fflSTORY OF CONGRESS.
2&2
April, 1802.
Proceedingt.
Senate.
Ordered^ That the farther coDsideration there-
of be postponed until to-morrow.
Weditgsday, April 14.
A message from the House of Representatives
informed tne Senate that the House hare passed
a bill to amend an act, entitled "An act lor the
relief of sick and disabled seamen," and for other
purposes ; in which they desire the concurrence
of the Senate. They have passed the bill, sent
from the Senate^ entitled "An act for the better
security of ptibhc money and property in the
hands of public officers and agents," with amend-
ments ; in which they desire the concurrence of
the Senate.
The bill first mentioned in the message was
read, and ordered to the second reading.
Tfie amendments to the bill last mentioned in
the message were read, and ordered to lie for con-
sideration.
The Senate resumed the consideration of the
motion made on the 12th instant for an amend-
ment to the Constitution of the United Slates.
Ordered, That the further consideration Ihere-
'of be postponed until to-morrow.
The Senate resumed the consideration of the
report of the committee, made on the 12th instant,
respecting the lands claimed by the United States
within the State of Tennessee ; and, on motion to
amend it, by inserting after the word " lands,"
these words, line 10th, •* to which the Indian
claim is extinguished, and which is not covered
by legal titles under the State of North Carolina :"
Ordered, That the further consideration there-
of be postponed until to-morrow.
Mr. J. Mason, from the committee to whom
was referred, on the 12th instant, the bill for the
relief of Theodosius Fowler, reported it without
amendment ; and, after debate,
Ordered, That the further consideration there-
of be postponed until to-morrow.
The amendments reported by the committee to
the bill in addition to an act. entitled "An act in
addition to an act regulating the grants of land
appropriated for military services, and for the So-
ciety of the United Brethren for propagating the
Gospel artiong the Heathen," were considered;
and. after pfoffress.
Ordered, That the further consideration there-
of be postpoined until to-morrow.
Thursday, April 15.
Mr. Jackson, from the committee to whom was
referred, on the 6th instant, the hill, entitled "An
act further to alter and establish certain post
roads," reported amendYiients ; which were read,
and ordered to lie for consideration.
The Vice President laid before the Senate a
report from the Secretary of the Navy, being an
estimate of the Marine Corps for the year 1801 ;
which was read, and ordered to lie for considera-
tion.
The Senate considered the amendments of the
House of Representatives to the biU, entitled ^'An
act for the better security of public money and
property in the hands of public officersand agents."
Ordered, That they be referred to Messrs. Tra-
cy, Nicholas, and Ogden, the committee who
brought in the bill, to report thereon.
The Senate resumed the second reading of the
bill for the relief of Theodosius Fowler.
Ordered, That this bill be postponed.
On motion, that it be
Rewlved, by the Senate and House of Representor
tives of the Imited States of America in Congress as-
sembled. That the Comptroller of the Treasury be, and
he is hereby, directed to obtain a continuance or contin-
uances of the Bu'it in favor of the United States against
Theodosius Fowler, now pending before the circuit
court, in and for the district of New York, until the
session of said court which shall be first held after the
next meeting of Congress : And in the meantime the
accounting officers of the Treasury are directed to re-
settle and state the accounts of the United States
against Theodosius Fowler, upon his contract made
with the Secretary of the Treasury, on day of
, giving to sedd Fowler at least thirty days' notice
of the time when he may attend, and produce such
claims, vouchers, documents, and testimony, as he may
choose ; and after fully attending to said accounts, and
the claims, dec, of said Fowjer, they are directed to
make report of Uieir proceedings thereon to Congress,
at their next session :
Ordered, That this motion lie for consideration.
The motion made on the 9th instant, that the
Secretary of Staite cause the journals of the (Gen-
eral Convention which formed the Constitution of
the United States to be printed, was further post-
poned.
The bill, entitled ^'An act in addition to an act,
entitled 'An act in addition to an act regulating
the grants of land appropriated for military ser-
vices, and for the Society of the United Brethren
for propagatiuff the Gospel among the Heathen,"
was read the third time.
Resolved, That this bill do pass with the fol-
lowing amendments :
Section 1, line 3, after the word ** act,*' insert *' and
until the first day of January next."
Line 4, after the word <^ warrants," insert " hereto-
fore."
Line 4, after the word " or," insert " registers."
Line 5, strike out the word " by," and insert " agree-
able to."
Line 10, after the word " the," in the second instance,
strike out to the end of section, and insert as follows :
"Same manner and under the same restrictions as
might have been done before the first day of January
last, provided that persons holding registers' certificates
for a less quantity than one hundred acres may locate
the same on such parts of fractional townships as shall,
for that purpose, be divided by the Secretary of the
Treasury into lots of fifty acres each."
Strike out 2d, 3d, 4th, dth, 6th, 7th, and 8th sections,
and insert a new section.
"And be it further enacted. That it shall be the duty
of the Secretary of War to receive claims to lands for
military services, and claims for duplicates of warrants
issued from his office, or from the land office of Vir-
ginia, or of plats and certificates of survey founded on
such warrants, suggested to have been lost or destroyed,
until the first day of January next, and no longer, and
263
HISTORY OF CONGRESS.
264
Senate.
Proceedings.
April, 1802.
immediatclj thereafler to report the same to Congress,
designating the numbers of claims of each description,
with his opinion thereon/'
The motion made yesterday, to amend the res-
olution under coDsideration on the 12th instant
respecting the lands claimed by the United Slates
within the State of Tennessee, was resumed, to
wit: To insert, after the word "lands," in the
second instance, these words : " to which the In-
dian claim is extinguished, and which is not cov-
ered by legal titles under the State of North Car-
olina."
And on the question. Will the Senate agree to
this amendment? it passed in the negative — yeas
5, nays 20, as follows :
YsAs — Messrs. Anderson, Cocke, Nicholas, Tracy,
and White.
Nats — Messrs. Baldwin, Bradley, Breckenridge,
Brown, Colhoun, Dayton, EUcry, T. Foster, Dwight
Foster, Franklin, Howard, Jackson, 8. T. Mason, J.
Mason, Ogden, Olcott, Stone, Sumter, Wells, and
Wright.
On motion to adopt the resolution, it passed in
the affirmative — yeas 23, nays 2, as follows :
Yeas — Messrs. Baldwin, Bradley, Breckenridge,
Brown, Colhoun, Dayton, Ellery, T. Foster, Dwight
Foster, Franklin, Howard, Jackson, 8. T. Mason,
J. Mason, Nicholas, Ogden, Olcott, Stone, Sumter,
Tracy, Wells, White, and Wright.
Nats — Messrs. Anderson and Cocke.
So the resolution was agreed to.
A message from the House of Representatives
informed the Senate that the House have passed
a bill laaking provision for the redemption of the
whole of the public debt of the United States in
which they desire the concurrence of the Senate.
The bill first mentioned in the message was read,
and it was by unanimous consent read the second
time.
Ordered, That it be referred to Messrs. Bald-
win, Breckenridge, Nicholas, Tracy, and Lo-
gan, to consider and report thereon.
The bill, entitled *' An act to amend an act. enti-
tled ^ An act for the relief of sick and disabled sea-
men, and for other purposes," was read the second
time, and referred to Messrs. Baldwin, Dwight
Foster, and Tract, to consider and report
thereon. ^
Ordered^ That the consideration of the motion
made on the 12ih instant, relative to an amend-
ment of the Constitution of the United States, be
postponed until Monday next.
Friday, April 16.
Mr. Franklin, from the committee to whom
was referred, on the 13th instant, the bill for the
relief of Paul Coulon, reported it without amend-
ment.
Ordered, That the consideration of this bill be
postponed until to-morrow.
On motion, by Mr. Bradley, that it be
Resolved, by the Senate and House of Representor
fives of the United States, ttoo-thirds of both Houses
concurring, That the following article be proposed to
the Legislatures of the several States, as amendments
to the Constitution of the United States :
That, after the third day of March, in the year one
thousand eight hundred and three, the choice of Elec-
tors of President and Vice President of the United Statei
shall be made by dividing each State into a number ai
districts, equal to the number of Electors to be chosen
in such State, and by the persons in each of those di-
stricts who shall have qualifications requisite for Elec-
tors of the most numerous branch of the Legislature of
such State choosing one Elector, in the manner which
the Legislature thereof shall prescribe:
Ordered, That this motion lie for consideration
until Monday next.
A message from the House of Representatives
informed the Senate that the House have passed
a bill to provide for the establishment of certain
districts, and therein to amend an act, entitled
"An act to regulate the collection of duties on
imports and tonnage," and for other purposes; a
bill to abolish the Board of Commissioners in the
City of Washington, and to make provision for the
repayment of loans made by the State of Mary-
land for the use of the city ; a bill to regulate and
fix the compensations of the officers of the Senate
and House of Representatives; a bill for the re-
lief of Fulwar Skipwith; and a bill for the relief
of Lewis Tousard; in which bills they desire the
concurrence of the Senate.
The bills were read, and ordered severally to
the second reading; and, by unanimous consent,
the bill to regulate and fix the compensations of
the officers of the Senate and House of Repre-
sentatives, was read the second time, and referred
to Messrs. Cocke, Dwight Foster, and Bradley,
to consider and report thereon.
Mr. Wright, from the committee to whom was
referred, on the 13th instant, the bill for establish-
ing the iGrovernment of the Territory of Columbia,
reported amendments, \(hich were read, and or-
dered to lie for consideration.
The amendments reported to the bill, entitled
''An act to alter and establish certain post roads^"
were considered and adopted, together with fur-
ther amendments.
Ordered, That this bill pass to the third reading
as amended.
By unanimous consent, the rule was dispensed
with, and the bill for the relief of Lewis Tousard
was read the second time, and referred to Messrs.
Breckenridge. AND£RS0N,and Ogden, to consider
and report thereon.
By unanimous consent, the bill to abolish the
Board of Commissioners in the City of Wash-
ington, and to make provision for the repajment
of loans made by the State of Maryland lor the
use of the city, was read the second time, and refer-
red to Messrs. Nicholas, J.Mason, and Wright.
to consider and report thereon.
The Vice President notified the Senate that,
as the session was advancing to a close, ai^reeably
to the practice heretofore adopted, he should with-
draw himself from further attendance for the re-
mainder of the session.
And on motion, the Senate adjourned until to-
morrow.
265
HISTORY OP CONaRESS.
266
April, 1802.
Proceedings.
Senate .
Saturday, April 17.
The Vice President being absent, the Senate
proceeded to the election of a President pro tem-
pore, as the Constitution provides ; and the hon-
orable Abraham Baldwin was chosen.
Ordered^ That the Secretatry notify the House
of Representatives of this election.
On motion, it was
Ordered^ That the Secretary wait on the Pres-
ident of the United States, and acquaint him that
the Senate have, in the absence of the Vice Pres-
ident, elected the honorable Abraham Baldwin
their President joty) tempore.
On motion/it was
Ordered, That Mr. Breckenriode be of the
committee to whom was referred the bill to en-
able the people of the eastern division of the Ter-
ritory Northwest of the river Ohio to form a con-
stitution and State Qovernment, in place of Mr.
Baldwin, elected President of the Senate.
Mr. Breckenridge, from the committee to
whom was referred, on the 16th instant, the bill
for the relief of Lewis Tousard, reported it with-
out amendment.
Ordered, That this bill pass to a third reading.
The bill for the relief of Ful war Skipwith was
read the second time, and referred to Messrs. Ni-
cholas. Dayton, and Clinton, to consider and
report tnereon. ^
The bill to provide for the establishment of cer-
tain districts, and therein to amend an act, entitled
** An act to regulate the collection of duties on
imports and tonnage, and for other purposes," was
read the second time, and referred to Messrs.
Brown, Anderson, and Tract, to consider and
report thereon.
Mr. Wright presented the petition of the traders,
pilots, builders, and others, concerned in naviga-
tion in the district of St. Mary's river, praymg
that the Collector's office may be established there,
being more convenient than at Nanjemoy ; and the
petition was read.
Ordered, That it be referred to the last mention-
€d committee, to consider and report thereon.
The Senate took into consideration the amend-
ments reported by the' committee to the bill for
establishing the Government of the Territory of
Columbia.
Ordered, That the further consideration there*
of be postponed until Monday next.
Mr. Bractley, from the committee to whom
was referred, on the 12th instant, the bill altering
the sessions of the District Court in the district
of Vermont, and for other purposes, reported
amendments, which were read and adopted.
Ordered, That this bill pass to the third read-
ing as amended.
Monday, April 19.
Ordered, That Mr. Stone be on the commit-
tee to whom was referred the bill for the relief of
sick and disabled seamen, in place of Mr. Bald-
win, President.
On motion, it was Ordered, That the commit-
tee to whom was referred, on the 1st of March
last, the petition of Ebenezer Stevens, be -dis-
charged.
A message from the House of Representatives
informed the Senate that the House have passed
a bill for the relief of the widows and orphans of
certain persons who have died, or may hereafter
die, in the service of the United States, in which
they desire the concurrence of the Senate.
The bill was read, and, by unanimous consent,
the bill was read the second time, and referred to
Messrs, J. Mason, Nicholas, and Tracy, to con-
sider and report thereon.
Mr. CocKE, from the committee to whom was
referred, on the 16th instant, the bill regulating
and fixing the compensations of officers of the
Senate and House ot Representatives, reported it
without amendment.
Ordered, That Mr. Stone be on the commit-
tee to whom was referred the bill making provis-
ion for the redemption of the whole of the public
debt of the United States, in place of Mr. Bald-
win, President.
Tiie bill, entitled " An act for the relief of Louis
Tousard," was read the third time and passed.
Mr. Nicholas, from the committee to whom
was referred, on the 16th instant, the bill to abol-
ish the Board of Commissioners in the City of
Washington, and to make provision for the repay-
ment of loans made by the State of Maryland for
the use of the city, reported amendments ; which
were read, and ordered to lie for consideration.
Tuesday, April 20.
Mr. J. Mason, from the committee to whom
was referred, on the 19th instant, the bill for the
relief of the widows and orphans of certain per-
sons who have died, or may hereafter die, in the
Naval service of the United States, reported it
without amendment.
The following Message was received from the
President or the United States:
Gentlemen of the Senaiej and
of the House of Representatives :
The object of the enclosed letter from the Director of
the Mint at Philadelphia being within Legislative com-
petence only, I transmit it to both Houses of CongreM.
TH. JEFFERSON.
Apkil 20, 1802.
The Message and letter therein referred to were
read, and ordered to lie for consideration.
Mr. Breckenridob, from the committee to
whom was referred, on the 15th instant, the bill
making provision for the redemption of the whole
of the public debt of the United States, reported
an amendment ; which was read.
Ordered, That it lie for consideration.
Mr. Brown, from the committee to whom was
referred, on the 18th of March last, the petition of
Alexander Gardner and Thos. Pinckney, report-
ed that the prayer of the petition cannot be grant-
ed, and that the petitioners have leave to with-
draw the same ; and the report was adopted.
The Senate resumed the second reading of the
bill for the relief of Paul Coulon.
267
HISTORY OF CONGRESS.
268
Senate.
Bedemption of the Public Debt.
ApriLj 1802
On the question, Shall this bill pass to the third
reading ? it was determined in the negative.
A message from the House of Representatives
informed the Senate that the House have passed
a bill to amend an act to establish the compensa-
tions of the ofl&cers employed in the collection of
the duties on imports and tonnage, and for other
purposes ; also, a bill making an appropriation for
the support of the Navy of the United States, for
the year dne thousand eight hundred and two ; in
which bills they desire the concurrence of the
Senate.
The bills were read, and severally passed to the
second reading.
Ordered^ That the bill, entitled " An act to re-
peal in part the act, entitled ' An act regulating
foreign coins, and for other purposes," be further
postponed.
Tne bill, entitled "An act further to alter and
establish certain post roads," was read the third
time, and was further amended.
On motion to strike out the following words
from the section last reported as an amendment,
to wit :
" And it shall be, and it is hereby declared to be, the
duty of drivers of all other carriages, in every reason-
able case, to give way to the carriage conveying the
mail ; and if any person or persons owning or driving
other carriages, shall use such marks or signals, or
shall refuse to give the road to the carriage carrying
the mail of the United States whenever the same may
be practicable, such person or persons, so offending,
shall forfeit and pay a sum not exceeding thirty dollars
for every such offence, to be prosecuted for, and recov-
ered, as in the foregoing section is pointed out :"
It passed in the negative — yeas 7, nays 17, as
follows :
Yeas — Messrs. Anderson, Breckenridge, Cocke, Day-
ton, Franklin, 8. T. Mason, and Wright.
Nats — Messrs. Baldwin, Bradley, Brown, Clinton,
Ellery, T. Foster, Japkson, J. Mason, Morris, Nicholas,
Ogden, Olcott, Stone, Sumter, Tracy, Wells, and
White.
And having agreed to amend the title of the
bill,
Resolved, That this bill pass as amended.
Mr. Nicholas, from the committee, to whom
was referred on the 17th instant, the bill for the
relief of Fulwar Skipwith, reported it without
amendment.
Mr. Olcott gave notice that he should, to-
morrow, ask leave to bring in a bill fixing the time
for the next meeting of Congress,
Mr. Brown, from the committee to whom the
subject was referred on the 7th instant, reported a
bill to extend and continue in force the proviMions
of an act entitled "An act givinoj a rignt of pre-
emntion to certain persons who have contracted
with John Cleves Symmes or his associates for
lands lying between the Miami rivers in the Ter-
ritory Northwest of the Ohio, and for other pur-
poses ;" which bill was read, and ordered to the
second reading.
And on motion, the Senate adjourned until to-
morrow.
Wednesuay, April 21.
Mr. Brown, from the committee appointed on
the bill to extend and continue in force the pro-
visions of an act, entitled "An act giving a right
of pre-emption to certain persons who have con-
tracted with John Cleves Symmes or his asso-
ciates, for lands lying between the Miami rivers,
in the Territory Northwest of the Ohio, aad for
other purposes," reported an additional sectioo to
the said bill ; which was read, and, together with
the bill, was read the second time.
The bill making an appropriation for the sap-
port of the Navy of the United States, for the year
one thousand eight hundred and two. was read the
second time, and referred to Messrs. Ellert, Clin-
ton, and J.Mason, to consider and report thereon.
The bill to amend " An act to establish the com*
pensations of the officers employed in the collec-
tion of the duties on imports and tonnage, and for
other purposes," was read the second timCjand re-
ferred to Messrs. Ellery, Clinton, and Wells,
to consider and report thereon.
Mr. Bradley gave notice that he should, to-mor-
row, ask leave to bring in a bill to establish by law
a more uniform manner of holding eleetioos in
each State for Representatives in the Congress of
the United States.
Agreeably to notice given yesterday, Mr. Ol-
cott had leave to bring in a bilUfixing the time
for the next meeting of Congress, which was read
and ordered to the second reading.
The bill altering the sessions of the district
court in the district of Vermont, and for other pur*
poses, was read the third time. On the question,
Shall this bill pass? it was det.ermined in the ne-
gative.
The Senate resumed the second reading of the
bill for the relief of Theodosius Fowler.
Ordered, That this bill pass to the third read-
inff.
Mr. Tracy, from the committee to whom was
referred the amendments of cbe House of Repre-
sentatives to the bill, entitled " An act for the bet-
ter security of public money and property in the
hands of public officers and agents," reported that
a conference be asked on the subject-matter there-
of; and the report was disagreed to.
Mr. Franklin from the committee to whom
was referred, on the 12th instant, the bill to enable
the people of the eastern division of the Territory
Northwest of the river Ohio, to form a- constitution
and State Government, and for the admission of
such State into the Union on an equal footing
with the original States, and for other purposes,
reported amendments which were read.
Ordered. That they lie for consideration.
REDEMPTION OF THE PUBLIC DEBT.
The committee to whom was referred the bill
making provision for the redemption of the pub-
lic debt, reported an amendment to the 4th sec-
tion. This section authorized making loans, in
Europe or America, to pay off instalments of the
public debt, which fall due in 1803 to 1806, inclu-
sively ; ana then directs that an equivalent sum
shall be laid out in the purchase or redemption
269
HISTORY OF CONGRESS.
270
April, 1802.
Redemption of the Public Debt,
Senate.
of sach parts of the present domestic debt as the
Commissioners of the Sinking Fund should think
proper. The amendment proposed that, instead
of the present domestic debt, it should si and, such
parts of the present debt of the United States, and
other demands against them, as the Commission-
ers of the Sinking Fund may lawfully pay agree-
ably to the provisions here in befor& made.
In support of this amendment it was alleged,
that the act would be defective if the provisions
of this clause were not co-extensive with those
which are contained in the preceding part of the
bill. That it was contemplated, in the bill, to
brinfi^ three miliions, which were in the Treasury,
(and which were set apart for payment of de-
mands in consequence of treaties,) to the aid of
the present appropriation ; and. of course, it would
be proper to provide for paymeiit of those demands
out of the Sinking Fund. And a reference was
made to the third section, in which the special
application of the Sinking Fund ($7,300,000) cre-
ated by the first, and made payable by the second
section, is particularly detailed. This application
is, 1st. To pay any sums the Commissioners of
the Sinking Fund are already bound to pay by
former laws.
2d. To pay the interest and charges on the pres-
ent debt 01 the United Stares, including the in-
terest and charges on future loans, for reimburs-
ing or redeeming any instalments or parts of the
principal of the said debt.
3d. To pay whatever might be necessary to dis-
charge any instalment or part of the principal of
the present debt, and of any future loans which
may be made for reimbursing or discharging the
same.
4th. To apply the balance of the fund, if any,
to the further and final redemption, by payment
or purchase, of the present debt, including therein,
first, loans for the reimbursement thereof; second,
temporarv loans from the bank ; third, demands
against tbe United States under any treaty or
convention with a foreign Power.
It was objected that the act stood better with-
out the amendment. First. Because the object
was at once more definite and more proper. The
intention avowed had been to apply $7,300,000 to
pay the debt foreign and domestic ) wherefore, if
new loans were made to pay the foreign debt, an
equivalent sum ought to be applied to the pay-
ment of the domestic debt.
Secondly. Because the amendment seemed to
imply the idea that this appropriation was illuso-
ry; for that, if it were to' be real, the borrowing
of any given sum, to meet an instalment of the
foreign debt, would leave an equivalent in the
Treasury, wnich would be no otherwise employed
than in the redemption of the domestic debt.
Thirdly. Because there was, by the amendment,
if not a direct contradiction in terms, such a strange
confusion of words as was totally unintelligible.
Thus, a part of the second, third, and fourth ob-
jects of the Sinking Fund, as pointed out in the
third section, is to pay the principal and interest
of new loans ; and the effect of the amendment is,
that a sum equivalent to the new loans should be
applied to these objects. Wherefore, it would follow
that the money left in the Treasury, by making
the new loans, should be applied in paying those
new loans.
Fourthly. Because the necessity of the amend-
ment, so far as relates to the demands, in contra-
distinction to the debts, did not appear ; for if,
as was stated, a sum of three millions was already
appropriated for payment of those demands, any
sum borrowed, for temporary convenience, from
that fund to aid the sinking fund, must be replaced
of course.
Fifthly. Because this amendment tended to de-
feat the intention of the bill, or at least to render
that intention highlv questionable. It was rea-
soning in a circle. Seven millions are to be ap-
plied in payment of our debts, foreign and domes-
tic. Instead of paying three millions of foreign
debt, which fall due, a new loan of three millions
is made. The equivalent sum of three millions,
which remains in the Treasury, invtead of being
applied to pay our domestic debt, is to be employ-
ed in satisfaction of demands. And the three
millions now in the Treasury, which had been
.set apart for these demands, instead of being ap-
plied to payment of the domestic or foreign debt,
IS to be thrown into the sinking fund as part of
the appropriation which ought to come solely
from the revenue.
Sixthly. Because if the effect of the amend-
ment was not such as is last stated, it would at
least have that appearance, and give but too much
reason for the people to apprehend that they
were deceived in tbe idea hela out to them, viz :
that, notwithstanding the repeal of the internal
taxes^ the revenue of the United States would
permit the appropriation of so large a sum as
$7,300,000 annually to the payment of our debts.
Instead of which they would find that this pay-
ment was to be made by funds formerly provided,
and which are all of them long since appropriated
by law to the redemption of the public debt.
The amendment was adopted.
Another amendment was proposed, viz* To
strike out from the first section the words '*and
^ also future loans which may be made for reim-
' bursin^ or redeeming any instalment or parts of
^ the principal of the said aebt."
In support of the amendment, it was said that
the section, as it stood, was unintelligible; and, to
prove this, the supporters of the bill were repeat-
edly called on to explain it ; that, if any meaning
could be regularly applied to it, that meaning was
wholly improper ; for it appeared to provide that
future loans should be made part of the linking
fund; that, by this section, the sum of $7,300,000,
specified therein, was to be made up out of the du-
ties on merchandise and tonnage, if the other ob-
jects designated in it should fall short; that these
objects are, first, the present sinking fund ; second,
the sum requisite to pay the principal and inter-
est of the present debt, including temporary loans
heretofore obtained; and, thirdly, future loans;
that the words moved to be struck out, could not
be otherwise interpreted, because it could not, by
any figure of speech, be said that the present debt
271
HISTORY OF CONGRESS.
272
Senate.
Redemption of the Public Debt.
April, 1802.
includes future loans to pay the present debt ; that
even admitting such a strained interpretation, it
could not apply to the present casej because the
interest of the present deot, being already provided
for by law, forms a proper item in the account of
those sums which constitute the sinking fund, but
if future loans form a part of the present debt,
they certainly ape a part for the interest of which
no provision has been made ; that if it was really
intended by the patrons of this act to make up
the sinking fund by new loans, the measure was
disffracefuT to Government, would expose the Le-
fisiature to contempt, and justly excite the pub-
ic indignation.
In opposition to the amendment it was said,
that the section was very clear and intelligible.
That those who did not understand it, must read
the report of the Secretary of the Treasury on
which it was founded. That those who properly
considered the report would easily comprehend the
act. That the words which were proposed to be
struck out were necessary. That this necessity
would appear from the subsequent provisions of
the act.
The amendment was lost — yeas 8, nays 18. as
follows :
Yzis — Messrs. Day ton , Dwight Foster, Howard,
Morris, Ogden, Olcott, Wella, and White.
Nats — Messrs. Anderson, Baldwin, Bradley, Breck-
enridge, Brown, Clinton, Cocke, Ellery, T. Foster,
Franklin, Jackson, Logan, S. T. Mason, J. Mason,
Nicholas, Stone, Sumter, and Wright. *
It was then moved to strike out the words, '' or
any individual or individuals," in the fifth section.
In favor of the motion it was said : That the
appointment of an agent to remit annually two
millions of dollars, would be not only improper in
itself, but highly obnoxious to tbe merchants of
America. That, from the nature of the business,
it was to be presumed that a man of mercantile
education and habits would be chosen. That
whether he was allowed to make commercial spec-
ulations for the United States, or confined merely
to the purchase of hills of exchange, his powers
might be applied to personal purposes. That it
would be easy for him to employ his particular
creatures to purchase cargoes and make shipments;
then purchase bills drawn on the credit of such
cargoes, if the speculation should prove success-
ful, share in the profit, and, if ruinous, leave the
nominal merchant to be relieved by a commission
of bankruptcy. That in the present state of things,
when mercantile credit is so much shaken, the
conpmand of so large a sum (or even one quarter
of it) would give to any merchant great advan-
tage over his brethren. That of course it would
excite envy and ill-will among that respectable
class of citizens; and let the Oovernment act as
they might, blame would light on them. That
this was a contrivance to relieve from due respon-
sibility the proper officer, and leave in the stead
the responsibility of some one not approved of in
the mode required by the Constitution. That it
opened the door to a species of patronage, of all
others the most pernicious.
To these observations it was replied : That the
business in question ever had been, and ever must be^
managed by subordinate individuals. That when
bills were purchased for the public by tbe banks,
it was always done by the agency of the cashiers.
That it was impossible the Secretary of the Treas-
ury could be accountable for the conduct of such
business, and therefore his responsibility would
be merely nominal. That the agent was to be
appointed by the Commissioners of the Sinking
Fund, and the respectability of the characters
which form that board, left do room to apprehend
an improper appointment. That if power to con-
tract with the banks alone was given, the public
would be entirely in the hands of those who direct
the banks, whereas they ou^ht to have the benefit
to be derived from competition.
The amendment was lost — yeas 9, nays 17, as
follows :
Yeas — Messrs. Dayton, Dwight Foster, Howard, J*
Mason, Morris, Odgen, Olcott, Wells, and White,
Nats — Messrs. Anderson, Baldwin, Bradley, Breck-
enridge. Brown, CUnton, Cocke, Ellery, T. Foster,
Franklin, Jackson, Logan, 8. T. Mason, Nidiolas, Stone.
Sumter, and Wright.
It was then moved to strike out the sixth sec-
tion, which gives authority to appoint an agent
for making loans in Europe.
In support of the amendment it was said : That
if any assent were necessary, it ought lo be a diplo-
matic character; because such character, sent to
and recognised by the Government of the country,
would necessarily have more credit than a com-
mon agent. That if any applications should, in
the course of such business, be necessary to the
Government, it could not he made effectually or
properly^ unless by such a character. That it did
not consist with the dignity of the United States,
that an agent charged with an afiairso important,
should be obliged to apply to under Secretaries,
if any business were to be transacted with the
Ministers. That the difference of expense (one
thousand five hundred dollars annually) was too
trivial to enter into so important a consideration;
for that one quarter per cent, on six millions
would be fifteen thousand dollars. That all busi-
ness of this sort had hitherto been transacted by
the diplomatic servants of America, and had been
well transacted. That no man ought to be em-
ployed or trusted in so weighty a concern who
had not weight of character sufficient for the place
of Minister. That if obligations for money bor-
rowed were to be signed, it would have a oettei
appearance that they should be signed by a Min-
ister than by a common agent. That the idea of
sending over a mercantile man to do a thing of
this sort, founded on an opinion that such men
understood it better than others, was unfounded,
because it was as foreio^n to their ordinary occu-
pations as to those of otner people. That inform-
ation on the subject could only be obtained on the
spot, and must, from the nature of the case, be
j derived principally from the bankers of the United
States. That the loan must be conducted princi-
pally by their skill, and be supported, in a great
degree, by their influence; and if not aided by
anything more than a common money agent, must
273
HISTORY OF CONGRESS.
274
April, 1802.
Proceedings,
Senate.
rest solely on their credit ; because the money
lenders could only know through them that the
United States were pledged. That the appoint-
ment of such an agent, considered in connexion
with the other agent already^ mentioned, mi^ht
lead to a suspicion that it was intended to provide
for favorites by lucrative jobs.
It was answered : That there could be no pro-
priety in sending a Minister for the mere purpose
of borrowing money. That persons might be
found well qualified for the transaction of this
business, who did not possess all the qualifications
necessary for a Minister. That the difierence of
expense was more than fifteen hundred dollars ;
for that a Minister was entitled to a year's salary
(as outfit) so that in efiect the expense would be
greater by six thousand dollars. That it might
not perhaps be necessary to send any person ; and
if it should be, then it was wise to send one at as
small an expense as possible. That it was the duty
of the Senate to economize the public money, and
people would be more apt to lend to a nation in
which economy prevailed, than to one which lav-
ished its funds on useless officers.
The amendment was lost. The bill was then
ordered to a third reading.
Thdrsday, April 22.
Mr. Brown, from the committee to whom was
referred, on the 17th instant, the bill to provide for
the establishment of certain districts, and therein
to amend an act, entitled '* An act to regulate the
collection of duties on imports and tonnage, and
for other purposes," reported it without amend-
ment.
Mr. Ellery, from the committee to whom was
referred, on the 21st instant, the bill makms an
appropriation for the support of the Navy of the
iJnited States, for the year one thousand eight
, hundred and two, reported it without amendment.
Agreeably to notice given yesterday, Mr. Brau-
LEY had leave to bring in a bill to establish, by law.
a more uniform manner of holding elections in
each State ; which was read \ and on the question.
Shall this bill pass to the second reading? it was
determined in the negative.
The bill fixing the time for the next meeting of
Congress was read the second time ; and on the
question, Shall this bill pass to the third reading?
it was determined in the negative.
The Senate resumed the consideration of the
amendments reported by the committee to the bill
for establishing the Government of the Territory
of Columbia; and having agreed in part to the
amendments reported, on the question, Shall this
bill be read the third time, as amended? it was
determined in the negative — yeas 13, nays 13, as
follows :
YsAs — Me«sr8. Anderson, Baldwin, Breckenridge,
Brown, Clinton, Cocke, Ellery, T. Foster, Franklin,
Jackson, 8. T. Mason, Nicholafi, and Wright
Nats — Messrs. Bradley, Dayton, Dwight Foster,
Howard, Logan, J. Mason, Morris, Ogden, Olcott, Stone,
Tracy, WelU, and White.
A message from the House of Representatives
informed the Senate that the House agree to some
and disagree to other amendments of the Senate
to the bul, entitled "An act further to alter and
establish certain post roads."
The bill, entitled "An act for the relief of Theo-
dosius Fowler," was read the third time; and, af-
ter debate,
Ordered That the further consideration thereof
be postponed until Moiiday next.
Friuay, April 23.
The Senate resumed the second reading of the
bill to reffulate and fix the compensations of the
officers of the Senate and House of Representa-
tives.
Ordered^ That this bill pass to a third reading.
The Senate took into consideration the amena-
ments reported by the committee to the bill to
abolish the Board of Commissioners in th*e City
of Washington, and to make provision for the re-
{)ayment of the loans made by the State of Mary-
and for the use of the city ; and having agreed
thereto,
Ordered^ That the bill pass to the third reading
as amended.
The Senate resumed the second reading of the
bill makinff an appropriation for the support of the
Navy of the United States for the year one thou-
sand eight hundred and two.
Ordered^ That it be recommitted to Messrs.
Ellery, Clinton, and J. Mason, the original
committee, further to consider and report thereon.
The Senate resumed the second reading of the
bill for the relief of the widows and orphans of
certain persons who have died, or may hereafter
die, in the Naval service of the United States.
The Senate resumed the second reading of the
bill for the relief of Fulwar Skipwith.
Ordered^ That this bill pass to a third reading.
Ordered^ That this bill be committed to Mr.
Morris, Mr. Dayton, and Mr. Nicholas, further
to consider and report thereon.
Mr. OouEN presented the petition of John C.
Symmes. praying relief from the operations of an
act giving a right of pre-emption to certain per-
sons who nave contracted with J. C. Symmes, or
his associates, for lands lying between the Miami
rivers, in the Territory of the United States North-
west of the river Ohio; and the petition was" read.
Ordered^ That it be referred to Messrs. Breck-
ENRinoE, Oguen, and Bradley.
A message from the House of Representatives
informed tne Senate that the House have passed
a resolution, authorizing the President of the Sen-
ate and the Speaker ofthe House of Representa-
latives to adjourn their respective Houses on the
26th instant, in which they desire the concurrence
of the Senate. Thejr have passed the bill sent
from the Senate, entitled " An act to amend the
Judicial system of the United States," with amend-
ments; in which they desire the concurrence of
the Senate.
The resolution for adjournment was read, and
ordered to lie for consideration.
The Senate took into consideration the amend-
275
HISTORY OP CONGRESS.
276
Senate.
Bedemption of the Public Debt,
April. 1802.
ments reported by the committee to the bill to
enable the people of the eastern division of the
Territory Northwest of the river Ohio to form a
constitution and State Grovernment, and for the
admission of such State into the Union on an
equal fooling with the original States, and for
other purposes; and having in part adopted the
amendments, the further consideration of the bill
was postponed.
Mr. Ellert, from the committee to whom was
referred, on the 21st instant, the bill to amend
" Ad act to establish the compensation of the offi-
cers employed in the collection of the duties od
imports and tonnage, and for other purposes," re-
ported amendments; which were read, and or-
dered to lie for consideration.
Saturday, April 24.
Th^ Senate took into consideration their amend-
ments disagreed to by the House of Representa-
tives to the bill, entitled " An act further to alter
and establish certain post roads ;" and
Resolved, That they do insist on said amend-
ments, ask a conference thereon, and that Messrs.
Jackson and Tract be the managers on the part
of the Senate.
The Senate took into consideration the resolu-
tion of the House of Representatives authorizing
the President of the Senate and the Speaker of
the House of Representatives to adjourn their
respective Houses on the 26th instant : and
Hesolved^ That they do not concur therein.
The bill, entitled " An act for the relief of the
widows and orphans of certain persons who have
died, or may hereafter die, in the Naval service of
the United States," was read the third time.
Ordered, That the further consideration there-
of be postponed until Monday next.
REDEMPTION OF THE PUBLIC DEBT.
The bill, entitled " An act making provision for
the redemption of the whole of the public debt of
the United States," was read the third time.
On motion, to strike out, section first, after the
word "that," in the second line, to the word
" hereby" in the twelfth line, and insert the words,
" In addition to all appropriations heretofore made
for payment of the principal and interest of the debts
of the United States, (other than surpluses of revenue)
80 much of the duties on merchandise and tonnage as
will amount, with the said provisions, to an annual sum
of seven millions three hundred thousand dollars, be,
and the same is hereby, appropriated to the Sinking
Fund ; and the said sum of seven millions three hun-
dred thousand dollars is :"
Mr. Morris. — Mr. President, there is a part of
this act which is proper, wise, and I believe indis-
pensable. But in order that it may produce the
desired effect it is essential that the intention of
it be rendered clear and intelligible. This is far
from being the case at present, and therefore I
shall offer an amendment for that purpose. It
gave me great pain (the other day when I asked
an explanation from those who are its supporters)
to be referred to a report from one of our officers.
Does it consist with propriety to pass a law which
eveu those who vote for it can in no other way
explain than by such a reference? If gentlemen
mean to derive credit from this measure amoDg
the people of America, it must be understood here,
and if they expect to borrow money in consequence
of it in Europe it must be intelligible there. The
state of our finances renders such loans in my
opinion indispensable. But theire is an actiately
f>assed, which will arrive in Europe, before any
oan can be made, and which will materially in-
jure the credit of this Government. I mean that
which repeals a tax on stills and distilled spirits,
that had been solemnly pledged for the payment
of the public debt. The inoney negotiators in
Holland have before them every one of our act:;
which relates to the public debL The instant you
propose a new loan, they will produce that repeal-
ing law, and tell you their confidence is shaken. To
remove the unfavorable impression acknowledg-
ing the repeal, you aver that you have (in lieu of
it) given a pledge much more important — ^a pledge
of seven million three hundred thousand dollars,
and you refer to this act They read it and say
<< we can't understand it. You may perhaps have
meant to appropriate the sum you mention, but it
conveys to our minds a different idea. We can
perceive no such pledge." My reason for believ-
mg that this will be their language is, that I could
not understand the act myself; and that when I
asked (from its patrons) an explanation, they did
not pretend to give it, but referred me to the re-
port of the Secretary of the Treasury. By read-
ing that report I have indeed discovered what it
means, but let me say, however, that this meaning
is not truly expressed in the act. It was drawn
by some person whose vernacular language is not
the English, and bears on the face oi it evidence
of that fact^ as I shall presently have occasion to
show. This may have occasioned the obscurity
which I wish to remedy.
In order that I may convey to the minds of
others, those ideas which I have collected from
reading and considering the report to which I was
referred, I beg leave to make a simple distinction
between the first object of the act, which is to ap-
propriate seven miUion three hundred thousand
dollars to the sinking fund, and the subsequent
directions how that fund is to be applied. ' The
first object is to be effected by the nrst section,
which, if we are to judge by the Secretary's re-
port, is intended to appropriate (in addition to
former appropriations) so much as may be neces-
sary to make up that sum of seven million three
hundred thousand dollars. But this does not ap-
pear to be the object, if we must judge by the
words of the bill. This meaning is not to be col-
lected from them, either on the first impression,
or when closely examined. The words are :
" Be it enacted, by the Senate and House of Repre-
sentatives of the United States of America in Con-
gress assembled^ That so much of the duties on mer-
chandise and tonnage as, together with the moneys,
other than surpluses of revenue, which now constitute
the sinking fund, or shall accrue to it by virtue of any
provisions heretofore made, and together with the sums
annually required to discharge the annual interest and
277
HISTORY OF CONGRESS.
278
April, 1802.
Redemption of the Public Debt,
Senate.
charges accruing on the present debt of the United
States, including temporary loans heretofore obtained,
and also future loans which may be made for reimburs-
ing, or redeeming any instalments, or parts of the prin-
cipal of the said debt, will amount to an annual sum of
seven millions three hundred thousand dollars.'*
Now, in order that we may clearly comprehend
this enigmatical clause, let us have recourse to
algebraic expression. Let A be taken from the
former appropriation and B for the additional sum,
to make up the seven millions three hundred thou-
sand dollars ; which, for brevity sake, I will call
seven millions. It is evident that every increase of
A, must operate to the diminution ^f B. If A be
&ye millions, B will be two millions. If A be six
millioDs, B will be one million. If A be seven
millions, B will he reduced to nothing. In order
therefore to determine the amount oi B (the pre-
sent appropriation) nothing more is necessary tnan
to fix the amount of A. By referring to the clause
just read^ it will appear that A is to consist of the
present sinking fund, of the interest of, and charges
on our existent debt, and of the interest of future
loans to redeem that debt. If then the two former
articles amount to five millions, and loans be made,
the interest thereof will amount to two millions,
A will be seven millions ; although the loans so
made, should be applied to extinguish an equiva-
lent amount of the present debt. For let that be
made certain, which is made capable of beine re-
duced to certainty. Let the present sinking Fund
and the interest of the present debt be stated in
figures at their precise amount. The amount will
form a deduction from B, the appropriation now
made, according to the tenor and express words of
the clause, leaving it less by that amount. And
after it is so lessened, a further diminution is to be
made for the interest of future loans. This, sir, is
the meaning of our appropriation, when properly
analyzed ; tor if it be not. what I pray is the case
of the words, ^'and also tuture loans which may
be made for reimbursing or redeeming any instal-
ments or parts of the principal of the said debt 1
These words cannot relate to those which imme-
diate! v precede them, for although the present debt
includes temporary loans heretofore obtained, it
cannot include future loans which may be made.
The reference therefore must be to the interest on
these future loans as a distinct object. Will it be
pretended that this constitutes any part of the pre-
sent appropriations ? Is it not clear that if such
loans be applied to the purpose for which they are
made, they must extinguish a part of the existing
debt? And is it not clear, also, that each of the
three articles specified must diminish the present
appropriation ? Invert the order and say ; we ap-
propriate seven millions, less the sinking fund,
and less the interest of our present debt, and less
the interest of that we may borrow to pay that debt.
Take the first article at three millions, and each of
the others at two ; then seven millions less the
sinking fund will be four millions, and less the in-
terest of future loans to pay that debt will be no-
thing. Here then is an appropriation (or rather
here is the semblance of an appropriation) which
means (or may be made to mean) just nothing.
But now I will admit, sir. for argument's sake,
that some other construction may l^ given to this
clause, (which, however, I cannot devis-e,) and
then I ask, is it prudent to go to Europe with a
law of such doubtful complexion, as the ground
on which to borrow money ? Is this wise ? Let
me again repeat, that you have injured your credit
bv a former act. I mean not to arrogate the merit
ot superior knowledge on this, or, indeed, on any
subject ; and, if anything which fell from me the
other day, had that appearance, it will, I hope, be
attributed to the true cause. No man can always
be so completely master of himself, when harass*
ed by the flippancy of debate, as not to drop some
hasty expression. It has happened that, being on
the spot, I have collected information respecting
this business, which gentlemen who have not had
the same opportunities may not possess. This
information. I hold it my duty to give, and every
Senator will draw from it his own conclusions.
When you are about to open a loan in Amsterdam
you must apply to the commissioners or bankers
whom you nave already employed. Send thither
what agent you may, ne must employ them, be-
cause others will not undertake it ; and for two
reasons — first, there is a kind of mercantile honor
which will restrain them in a considerable degree,
and, secondly, they would apprehend the opposi-
tion of those from whom the ousiness was taken,
and who certainly could throw great obstacles in
their way. Under these circumstances, in which
you apply to these bankers, and with this law in
your hand, what will you say? They will tell
you they cannot understand it; that you have
taken away one pledge which they understood and
on which they relied. They will ask if this new
pledge cannot be taken away as easily as that ?
Admitting the sincerity of your professions, they
will ask what security they have against a change
of sentiment in the Legislature? They will in-
quire what check there is in our political organi-
zation to prevent a violation of public faith ; and
bow far such checks are effectual ? Suppose a
satisfactory explanation can be given in answer
to these essential inouiries, they will proceed to
ask an explanation or the law itself. They will
analyze it, and will doubt of the meaning, or,
rather, they will perceive in it the meaning which
has already been pointed out. How will your
Secretary of the Treasury, or his agent, obviate
objections ? Must these bankers be, as we were,
referred to his report ? If so, will they not obiect
that this report torms no part of the law? Will
they not nut the question which suggests itself at
the first blush to the most simple observer, Why, if
this was your intention, did you not express it in
terms so clear as not to be misunderstood ? It will
not be decent to reply, that the law was drawn
by a foreigner and passed by the two Houses of
Congress in blind confidence. These bankers un-
derstand English ; they will not commit them-
selves lightly, and even if they should, the success
would be doubtful. Those who have opened
other loans, and who, from that circumstance,
stand in opposition, will point out to money-lend-
ers the detects in this law. These people, they
279
HISTORY OF CONGRESS.
280
Senate.
Redemption of the Public Debt,
April, 1S02
will say, speaking of us, meant to pledge seven
millions three hundred thousand dollars, or they
did not. If they meant it, they would nave ex-
pressed their meaning in such way as could admit
of no doubt. If they did not mean it, they could
have had no other intention than to deceive by a
false appearance. They, but a few days before,
repealed a law pledging, in terms clear and une-
quivocal, a specific tax to the payment of their
debts, and now they offer a vague and general ap-
propriation, in terms obscure and equivocal.
This, Mr. President, is a subject in which nei-
ther I nor my friends are any otherwise concern-
ed, than as it relates to the national honor and
credit. It is not a measure for which we feel re-
sponsibility. It does not excite in us a spirit of
opposition. But we wish, I repeat it again, to save
the honor and the credit of our country. Gentle-
men have thrown away the internal taxes, and
are about now to tell the American people that,
without the aid of those taxes, they can provide
for the current service, and appropriate upward of
seven millions as a provision for the redemption
of the whole of the public debt. This is what
they pretend, and I am bound to suppose that this
is what they mean ; for I cannot presume that
they have the wish, much less the intention, to
impose upon the people by a vile trick. Surely,
they cannot mean, by using an unintelligible jar-
gon, to cheat their fellow-citizens into the idea,
that above seven millions are appropriated to this
object, when in fact there is no such appropria-
tion. It would be too pitiful « device, and I can-
not believe that any gentleman would descend to
an expedient so poor, so base, merely to catch a
little popularity. Presuming, then, that they real-
ly wish what they say. I will now offer an amend-
ment to express that meaningr Iq terms simple,
clear, and definite ; terms whicn can easily be un-
derstood, and which cannot be misunderstood. I
move, therefore, sir, that from the word " that" in
the second line^ to the word "hereby" in the four-
teenth line be struck out, and the words '^in addi-
' tion to all appropriations heretofore mad« for
^ payment of the principal and interest of the
' debts of the United States, (other than surplus-
' es of revenue,) so much of the duties on mer-
^ chandise and tonnage, as will amount with the
^ said appropriation, to an annual sum of seven
* millions three hundred thousand dollars be, and
' the same is hereby, appropriated to the sinking
* fund, and the said sum of seven millions is" be
inserted.
Mr. Wright. — I hope we shall not agree to the
amendment. This ought not to be done, as ap-
pears by the gentleman's own argument. He has
said that this law was in the language of a for-
eigner— meaning, I suppose, Mr. Gallatin. The
gentleman has attempted to show the propriety of
this amendment, very simply, by using the letters
A and B ; but he never couH get me to C. The
language of the act as it stands, is very good, sir.
The gentleman finds it very difficult to under-
stand ; but, I, sir, understand it fully, and I think
it correct and very proper. The Secretary of the
Treasury has told us what we ought to do in the
premises. He knows, and it is right to do as he
says.
Mr. S. T. Mason said : As I understand that
amendment, sir, it is to deprive the bill of a very
important part of its provisions ; to prevent any
portion of this money from going to the payment
of interest on loans hereafter to be made. If that
is the case, I must be opposed to it ; and that seems
to me to be the intention.
Mr. BRECEENRinGG. — When that amendment,
sir, was first shown to me, I did not perceive any
material difference between -the amendment and
the bill. But, sir, if this word *' debt," used in the
amendment, is to prevent moneys hereby appro-
priated from going to the payment of new loans.
It varies materially from the bill.
Mr. Morris. — 1 did hope and believe, Mr. Pre-
sident, that the distinction I had taken, and which^
at the time, appeared to me almost ;[innecessary,
would have had the intended effect of preventing
observations, such as we have just heard. I must
again request gentlemen to take notice, that the
clause to which I have moved an amendment, re-
lates not to the application, hut to the constitutioo
of the proposed fund of seven milKon three hun-
dred thousand dollars. After determining what
that fund is to consist of, the act goes on to de-
clare in what manner it shall be applied. The
question is not now on the end of the journey, but
on the beginning. The gentleman from Virginia
and the gentleman from Kentucky, will see that
their observations apply, not to the manner in
which this fund is iww to be constituted, but to
the directions by which it is hereafter to be used ;
and these directions are contained in the subse-
quent parts of the art. The plain case is, seven
millions three hundred thousand dollars are to be
annually applied in payment of our debts. This
is a clear and simple proposition. What gave rise
to all our difficulties the other day, was, that we
really could not understand the first clause of the
act. And when we asked an explanation from
those who were presumed to understand, as they
seemed determined to vote for it, we were con-
stantly referred to the Secretary's report. This
last chapter of the Apocalypse, can. it seems, be
exposited, only by that first chapter of Genesis.
In obedience to the orders of honorable gentlemen
on that day, I have since read, examined, and con-
sidered the report ; and if they also are acquaint-
ed with it, they will see that the amendment now
before the House, comes up precisely to the ideas
contamed in the report. It appropriates, in addi-
tion to former provisions, so much as will .make
up the contemplated sum. This form of expres-
sion has the advantage, that it must be understood,
and cannot be misunderstood. Nay, it obviates
all doubt which may arise upon former laws ; for
it is perfectly immaterial, whether former provis-
ions amount to one million or to five millions,
since the balance, be it what it may, is to be made
up from the revenue. Is the revenue mortgaged
to the amount of only one million, the additional
mortgage, by the act, will be six ; is it mortgaged
to the amount of five millions, the additional mort-
gage will be one \ in short, the final effect will be
281
HISTORY OF CONGRESS.
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April, 1803.
Bedenvption of the Public Debt.
Senate.
the same in every supposable case, and your rev-
enue will stand pledged, eventually, to the amount
required, of seven millions three hundred thousand
dollars. This, gentlemen say, is their object. I
do not call in question their sincerity ; but, in-
stead of a clause which does not clearly express
that object, I have offered one which does clearly
express it. If they reject the amendment, they
must see the natural conclusion. I leave it, there-
fore, with them to do as they please.
It passed in the negative — yeas 10, nays 16, as
follows :
Yeas — Messrs. Dayton, Dwight Foster, Howard, J.
Mason, Morris, Ogden, Olcott, Tracy, Wells, and
White.
Nats — Messrs. Anderson, Baldwin, Bradley, Breck-
enridge, Brown, Clinton, Cocke, EUery, T. Foster,
Franklin, Logan, 8. T. Mason, Nicholas, Stone, Sum-
ter, and Wright
Mr. Morris. — I must now move some other
amendments to this section, which will relate only
to the language; the first is, to strike out the
words, ^^ including future," and insert the words,
" and the " so that, instead of the present debt in-
cluding future loans which may be made, the
clause may read '' the present debt, and the loans
which may be made." I suppose the gentleman
will reject this, too, and declare, by their votes,
that the i>re«en/ debt includes ^u^ure loans.
Mr< Wright. — Mr. President, this clause is
much better as it is; it is more full and compre-
hensive. It is according to the meaning and ob-
ject of the Secretary's report, and I hope it will
not be altered.
Mr. Dayton. — If gentlemen wish to prove that
future loans, by which I suppose they mean, if
they mean anything, or know what they mean,
loans hereafter to be made, are included in the
present debt of the United States, they have now
a tine opportunity of showing it by their votes,
and should reject the amendment.
Mr. Wright. — I insist upon it. sir, the bill stands
better as it is ; it will not aamit of alteration. The
language is right enough ; it comes up to the ob-
ject of the Secretary, and to what is proper to be
done. I will not agree to alter it.
This amendment was carried.
Mr. Morris moved the same amendment in
the beginning of the third section.
Mr. M. — This correction of style consists with
that which the Senate have already adopted. In
fact, sir, the vicious expression frequently occurs,
and is merely a Gallic idiom. The word includ-
ing, is a translation of the words y cambria^ and
in a French law would do very well, but in Eng-
lish, it is nonsense.
Mr. Theodore Foster. — Mr. President, the
words, as they now stand, are ^ the present debt of
' the United States, including future loans which
' may be made, for reimbursmg any instalments
^ or parts of the same." This is a common mode
of expression. It is more comprehensive than the
amendment proposed. I find tne same expression
occurs frequently. It will take time to alter it,
and therefore I hope the amendment will not be
agreed to.
Amendment lost —yeas 10, nays 14.
Mr. Morris moved several other amendments
to the style, most of which "were lost.
Mr. Morris. — The amendment I now mean to
offer is not merely verbal, but of substantial im-
portance; it is, strike out, in the fourth section, the
words, ''" six years after the date of the same, and
that the rate of interest thereupon shall not exceed
five per centum per annum, nor the charges there-
on, tne rate of five per centum on the capital bor-
rowed;" and insert the words, "ten years from
the period when the same shall be made, and that
the total amount of the interest apd charges shall
not exceed six per cent, per annum on the capital
thereof." The object of tnis amendment, sir, is sim-
ply to authprize the Commissioners of the Sinking
Fund to make loans not reimburseable in less than
ten years, if they should find it adviseable, instead
of six years, as stated in the act. The terms I pro-
pose are the same, viz., not to exceed six per cent,
interest ; for the five per cent, commission and five
per cent, interest, on a six years' loan, amount to
six per cent, interest, or very nearly so, as gentle-
men will see at cftice, by an operation of common
arithmetic. If, with the aid of logarithms, they
choose to make the calculation accurately, they
will find it is within four cents of six per cent.
The effect then of the amendment is, to empower
the Commissioners of the Sinking Fund to borrow
for a term of ten years, if they cannot obtain mo-
ney on a loan for six years. By stating merely
the interest,imrhich is not to be exceeded, it will
be in the power of those who execute the business
so to arrange it as may be most suitable to the
lenders ; by commissions, premiums, or otherwise.
This, sir, I consider as important; because we
cannot, at thi? distance, determine exactly on the
plan which will suit those who are to lend the
money ; and the way in which loans are made is
to inquire into circumstances, and discover the
bait wnich lenders will bite at. One circumstance
is important, and must therefore be mentioned.
Loans reimburseable at a distant day are more
valuable than those of a shorter date. The rea-
son is clear. Those who place their money in
public funds, to receive a regular interest, find reim-
bursement inconvenient, because it compels them
to make a new disposition of their capital ; and
those who buy with a view to subsequent sale, at
an advanced price, will of course prefer stock of a
durable nature, because it fives sufficient time to
look for that advance. Those who, at the close
of the American war, bought into the British three
per cents.; then but little above fifty per cent., and
sold out when they had risen much above ejghty
per cent, (which happened to be the case shortly
before the present war^) received near six percent,
interest on their capital, during the investment,
and a profit of sixty per cent, on the sale. The
English funds are at tne door of the Dutch capital-
ists. They can watch their course, and provide for
events as they happen. These and other induce-
ments, to lend money at or near home, will operate
against you. It is impossible to say what terms
will suit these people, but it is easy to say that cer-
tain terms will not suit them. I think you cannot
283
HISTORY OF CONGRESS.
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Senate.
Redemption of the Public Debt,
Apbil, 1S02.
reasonably expect to borrow money on a short
credit, because, if the peace continues, the British
stock (the interest of which has for more than a
century been regularly paid) offers so clear a pros-
pect of gain, from the rise, that those who have
money will prefer it to your obligations. When
the British funds rise so high that investments
in their three per cents, will not give more than
&ve per cent, interest, you will perhaps succeed
in borrowing for six years ; but it the war should
recommence, you will not, I believe, be able to get
money on any terms. I shall press this amend-
ment no farther. What I advance is on the ground
of private information, from whence I collect that
American obligations bearing an interest of five
per cent, were m Amsterdam three per cent, below
par. So long as this is the case, it is idle to expect
that you can borrow at five per cent, for a snort
term, because any person inclined to lend in that
way would rather purchase the obligations at
ninety-seven per cent. I leave gentlemen who
are connected with the Administation, and who
have I suppose correct information from the Head
of the Department, to judge for themselves.
The amendment was lost.
Mr. Morris. — The untoward state of so many
amendments is a sufficient indication that I need
not trouble either the Senate or myself with any
thing more of that sort. But I feel it my duty to
suggest to gentlemen, whose act this is, the pro-
priety of correcting that part of the fifth section
which speaks of purchasing remittances. I the
rather avoid all attempt to amend it, as I must
again ackowledge my ignorance. I know not
what is meant by purchasmg remittances. I know
what it is to purchase bills, bullion, &c., to make
remittances. Whether it is intended that when
other people have made remittances the things
by them sent shall be purchased, or whether ^un-
der this vague term) cargoes of produce ana of
all kinds of merchandise are to be included, I know
not. Whether, by the help of the agent contem-
plated in this clause, the United States of America
are to become a trading company, and the loss on
bad speculations in trade, is to be made up by
taxes on the people, I cannot discover. This last,
however, would seem to be the case, from that pro-
vision in the section which appropriates so much
from the revenue as may be necessary, to pay
'^the extra allowance or commission resulting
' from such transactions, and the deficiency arising
^ from any loss incurred upon any remittance pur
' chased or procured." I shall not repeat my ob-
t'ections made the other day to the same agent ;
lut I must say, that it behooves gentlemen to ren-
der this part of their act more explicit, unless it be
indeed their intention that this a^ent shall make
commercial speculations, and when successful
pocket the profit — when unsuccessful saddle the
public with the loss.
No answer was made to these observations.
The bill was read a third time, and, on the ques-
tion, shall it pass :
Mr. Morris said, — Mr. President. I have always
thought this measure unwise ; from what has now
passed, I think it worse. In the course of my ob-
servations I must refer gentlemen to their favorite
document — the Secretary's report. But I sup-
pose nothing I can say will avail } they seem de-
termined to pass ttie law at any rate.
I said the other day. that the surplus of all our
revenue beyond the appropriations, was already
pledged to the sinking fund. This gentlemen had
the goodness to deny. I pray they will now be
pleased to turn to the eighth pa^e of the Secreta-
ry's report. They will there find, in the eighth
section, among the provisions for the redemption
of the public debt, **A11 surpluses of the revenues
' of the United States, which shall remain at the
' end of any calendar year, beyond the amount of
' the appropriations charged upon the said reve-
' nues, and which during the session of Congress
* next thereafter, shall not be otherwise specially
' appropriated or referred by law."
ft is indeed said, in the third section of the &fth
pape, that, from certain defects in the mode of
doing business, the amount of this surplus cannot
be ascertained. He tells us it is uncertain '^ whe-
^ ther the proceeds of loans should be included in
^ the revenue." I pray gentlemen will attend to
this expression. Your Secretary considers it as
doubtful whether loans make pare ufthe revenue ;
and tells you the construction as to that point has
not been uniform. He sends you an account to
show that, instead of a surplus, there had been a
deficiency of near a million from the establish-
ment of the Government to the close of the year
1799; and concludes from that circumstance, that
the accounts have been irregularly kept. As to
the manner in which the books have been kept,
Mr. President, it is of no consequence. It ap-
pears by this very report, that, let them hare been
kept as they may, there is now a surplus of more
than three millions of cash in the Treasury. We
have just seen that the whole surplus revenue, be
it what it may, is appropriated to the payment of
our debts. This sum of three millions, therefore,
no matter how it got into the Treasury, is already
bound to the payment of our debts. As to the
difficulties or the blunders in keeping our books,
supposing any such to exist, they may be obviated
by the Secretary himself, or, if not, it will be
easy to make the needful provisions by law. The
appropriation formerly made, is not perhaps suffi-
ciently clear and defioite, but until the objections
be distinctly stated we cannot judge of them,
neither can we pretend that any law, much less
the law now proposed, can be necessary to remore
them. Last of all, can it be pretended that the
appropriation does not exist? Let any gentlemen
show a single dollar of revenue, except that from
the post otnce, which is not now appropriated.
Gentlemen have said otherwise, but let them show
it. A part of the internal revenue, indeed, was
not specifically pledged, but the whole has been
repealed. While I now speak, every farthing of
surplus is appropriated to tne sinking fund. What
then is the effect of this act, fastidiously pretend-
ing to redeem the whole public debt i Will it
bring one dollar into the Treasury ? Or is there a
magic in the words of it, by which debts can be
paid without money ? You undertake to appro-
285
HISTORY OF CONGRESS.
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April, 1802.
Redemption of the Public Debt,
Senate.
priate seven millions, and you have it not to ap-
propriate. I say seven millions, leaving out the
additional three hundred thousand, for I must now.
for the facility of comprehension, confine myselr
to round numbers. Your Civil List, including for-
eign afiairs, amounts to a million ; your Navy to
a million; your Military Establishment to a mil-
lion and a half. Admit, for a moment, that your
boasted economy will reduce these items, (by
some trifle,) you see at a single glance, that if this
act be passed, ten millions and a half of revenue
will be required to meet your appropriations.
Now, sir, what is your revenue? When this sub-
ject was in question, I had the honor to assign my
reasons for believing that the duties would not
exceed eight millions, supposing them to be regu-
larly and honestly paid. What have you in ad-
dition ? Arrears of taxes, sales of land, and the
post office. The arrears of taxes will be noticed
presently. They form part of the surplus already
pledged. As to the post office, the fifty thousand
dollars to be derived from that source ought to be
expended in the extension of communication ; at
any rate it is a trifle. The sales of lands, then, is
the only fair addition to the duties. I know no-
thing of the circumstances attending your lands.
This fund may be prolific ; it may produce noth-
ing. I have, however, many reasons to believe
that it will yield less than it has done, but admit
that, (instead of 400,000 dollars, the sum estima-
ted by the Secretary,) it should amount to half a
a million. Admit that your duties produce ei^^ht
millions, you can then count upon eight and a
half. Deduct for the support of Grovernment,
three and a half, there remains five. And on this
yCu are about solemnly to pledge yourselves for
seven. Let gentlemen consider well what they
do. Here is no logical, no metaphysical argu-
ment. You can neither deceive others, nor have
the poor excuse of ignorance* for yourselves. It
is a question to be solved by the first rules of
arithmetic. You are now about to vote against
arithmetical demonstration, and that vote shall be
recorded. This, I tell you, is one of the most se-
rious subjects you have yet touched; and seri-
ously will you have to answer for the vote which,
is now to be given. Consider, then, what you are
about. You are about to make appropriations in
the face of facts. There must be a deficiency of
funds. You know there must. Do you mean,
then, to come forward next session, (when that
deficiency becomes notorious^ and repeal this law ?
Will you make a solemn mockery — a mere farce —
of legislation? What excuse can you devise?
Polly is not sufficient. Nothing but madness —
downright madness — which indeed is an excuse
for anything.
Gentlemen may, perhaps, suppose they can cover
themselves under their confidence in the Secretary.
I will not examine the decency of that defence,
but I tell them it will not serve thf ir turn. Look
at the language of this Secretary, in whom they
put their trust. In his report ot December last
he acknowledges that our revenues (taken at
the amount he states in that report) will fall
short of satisfying this appropriation, and the cur-
rent service, by two hundred thousand dollars; but
that sum will ne supposes be supplied by an econ*
omy to the same amount. In the letter of the
31st of March, to the Chairman of the Committee
of Ways and Means which forms their report, and
to which we have been so often referred, as the
Secretary's report, speaking of the $7,300,000. he
says: "The ability or the United States, with their
' present revenue, to apply annually the sum to
' that object, rests on the correctness of the esti-
* mates annexed to that report." Your Secretary
is a man of sense. He knew better than risk his
reputation on this business. He tells you, express-
ly, that your ability, even with the revenue we
possessed prior to the repeal of the internal taxes,
could not be relied on, if those estimates were
fallacious. Now sir, if that fallacy has not been
demonstrated, it has at lea^t been shown that the
correctness of the estimates is questionable. And
yet gentlemen are about to adopt these doubtful
estimates, and give to them the weight and credit
of admitted facts. Ydur Secretary goes on to say,
in the same page, that these estimates "will not be
* afiected by the repeal of the internal taxes, pro-
^ videdjth&t the retrenchments made in the expen-
' diture shall have been equal to the sum of $650,-
> 000, for which credit was taken on account of
' those taxes." Is, then, the Secretary pledged bv
anything in this report? Not at all. He tells
you if your revenue is sufficient, you can make
the appropriation, and as you retrench, your expen-
ditures, you may diminish the taxes. He tells
you, if the retrenchment be equal to the diminu-
tion, the diminution will not affect the appropria-
tion. But he tells you expressly, that even if the
truth of his estimates be admitted, the appropria-
tion proposed will occasion a deficiency of $300,-
000, to which must be added 650.000 more for re-
peal of the internal taxes. Here then you have a
deficiency of $850,000. to be made up by economy
and retrenchment. The language of your Secre-
tary, therefore, is, if you admit the revenue to be
$9,950,000, and reduce your expenditures for the
support of Qovernment from three millions and a
half to $2,650,000,* you will then have a residue of
$7,300,000. But will your revenue amount to so
muchi No. Have you brought down your ex-
penditures to a sum so small? No. Does the Sec-
retary affirm either of those facts? No. When
you shall find yourselves egregiously mistaken,
and resort to yotir Secretary, he will tell you, that
he gave^rou his calculations, and his reasons, and
his opinions. That he told you so. But you
reasoned and judged and acted for yourselves.
Nay be will prove that; so far from vouching that
vour revenue would amount to the required sum,
he had not only expressed a doubt of the fact, but
went on to suggest an expedient by which the de-
ficiency might (in appearance at least ^ be suppli-
ed^ In the same page 21, he goes on tnus: *^But
' in order to run no risk on that ground, I would
' suggest a modification in the manner of making
^ the appropriation which will effectually guara
' us. shouhl the annual amount of the net receipts
* in the Treasury, be more affected by the restora-
^ tion of peace than has been expected." Here then
287
HISTORY OF CONGRESS.
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Senate.
Redemption of the Public Debt,
April, 1802.'
you see that your Secretary is already employed
in guarding against the deficiency, and against
the complaints and reproaches which that defi-
ciency must occasion. You will be pleased also
to take notice, that this guard is to consist in the
manner of making the appropriation. Thus it
would seem that your Secretary thinks he can
contrive to appropriate from your revenue in such
a way as to be effectually guarded, if the revenue
does not produce the sum appropriated. But, be-
fore you trust to these contrivances, you will do
well to consider, that a determination to pay seven
millions will not make seven millions.
Let us now look at the Secretary's expedient.
We find it in the second section of the twenty-
fifth page. After mentioning, in the section which
precedes it, a surplus of more than three millions,
which haa been relied on for special purposes,
and of which I shall presently take some notice
he goes on thus: ''Those estimated three millions
' may, therefore, be safely relied on in addition to
'the permanent revenues; «nd the modification
' which I would suggest, consists in making the
' payment of the eventual demands, which may
' becomes due to foreign nations, conditionally pay-
' able out of the proposed appropriation of $7,300,<
' 000 for the debt, with a proviso, that both those de-
' mands and the temporary loans might be paid out
' of other moneys, if the situation of the Treasury
* should permit it. The effect of this modification
' would be, eventually, to draw the three millions
' reserved to assist the current revenues, if these
' should fall short of the estimates." We find here
perhaps the source of that enigmatical language
which gentlemen have with such solicitude de-
fended against amendment. Before I examine,
how«ver, this modification of the plan held out to
us in December, permit me to say some few words
about the three million fund. The Secretary tells
us these three millions were considered as a pro-
vision to meet the probable demands which might
arise under the convention with France and the
treaty with Qreat Britain. They were to be de-
rived from the surplus of specie in the Treasury,
a sale of bank stocK. arrearages of the direct tax,
and the stamp duties. The repeal of these last, he
tells you, will be more than balanced by arrear-
ages of the internal taxes, which amount to a mil-
lion. The cash in the Treasury exceeds three
million. The bank stock is worth more than a
million. Thus we have more than five million,
besides the arrears of the direct tax. The conclu-
sion of the Secretary, therefore, that these funds
may be relied on for three millions, is so much
the more correct, as he has now, in cash, in the
Treasury, a greater amount I must also remind
gentlemen of the distinction they dwelt on the
other day between debts and demands ; a distinc-
tion which runs through the law before us. They
have insisted that these demands form no part of
the debt properly so called. Now they will Be
pleased to recollect, that the three millions of sur-
plus revenue are already pledged to the sinking
fund for payment of the debt. Your Secretary,
however, sets it apart to pay these demands, which
it seems are no part of the debt ; and now he pro-
poses that, by way of modification, it constitute,
in aid of the revenue, a part of the new sinking
fund, and that this new sinking fund be charged
with payment of the demands. Thus, after run-
ning round the circle., you have not advanced a
single inch. Pretendmg to make an appropria-
tion of seven millions Trom the revenue to the
sinking fund, it is proposed to take more than
three millions from that very fund to eke out de-
ficiencies of the revenue. But, after all, this con-
trivance will not answer the intended purpose.
All the surpluses, be the amount what it may,
are already pledged to the payment of our debts;
and this amount, be it more or less than the three
millions stated, must eventually be known with
precision. As far as it goes, it is a provision al-
ready made for payment of the public debt ; and
if, for convenience, it be diverted to any other pur-
pose, it must be afterwards replaced by an equiv-
alent sum. it is, then, proper to view the whole
subject together. Your Secretary tells you that
upwards of seven millions annually will be re-
quired, for three years to come, to pay the princi-
pal and interest of your debts, and to this must be
added at least one million more for the demands
under the convention with France and England.
Thus you have, in three years, to pay twenty-four
millions. Three millions and more are in band,
belonging to the sinkii\g fund ; of course yoa have
the means to pay off these demands. But, seeing
a great probability that your revenue will faU
short, these three millions are to be applied (in aid
of it) to make up the seven millions which should
be derived solely from the revenue. It is then a
loan from the present sinking fund to the revenue,
and must be repaid. It operates, we will suppose,
to reduce the twenty-four millions to twenty-one
millions ; still those twenty-one millions must be
paid within three years, and that from the revenue.
You, indeed, authorize a loan in Europe to meet
emergencies, but you repel the idea of paying
your present debt by incurring a qew deot to a
greater amount. You do not, I presume, mean to
subject yourselves to this imputation. Of course,
the sums so borrowed must be applied in addition
to the seven millions. These foreign loans, then,
like the three millions borrowed from the sinking
fund, are merely for convenience ; and the twenty-
one millions are still to be paid within three years,
from the revenue of those years. If there be a
deficit, therefore, of two millions annually, it must
eventually appear and be felt. You may, indeed,
by this contrivance, provide for the exigency of
the moment, but it amounts to nothing. You
may amuse yourselves, from morning till night,
by taking money out of one pocket and putting it
in the other, you will not be one fartning the
richer. Suppose, sir, your revenue should fall
short of your expectation ; suppose that, alto-
gether, it should amount to but eight millions.
You pledge, by this act, seven millions. Of course
there remains but one million to pay the current
expenses, which will require at least three mil-
lions. I presume that fi^entlemen mean to make
this seven millions a real appropriation, notwith-
standing the mysterious words of their law, and
289
HISTORY OF CONGRESS.
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April, 1802.
Redemption of the Public Debt,
Senate.
not a mere trick. They surely do not mean to
deceive the American people by false appear-
ances. What, then, will they do shoujd they find
a deficiency of two millions? Will they come
forward asain with a violation of the public faith,
and repeal this law, after making louns on the
credit of it ? Or, will they come forward and
lay two millions of taxes upon the United States?
Here they perish. They have thrown away one
million, and must lav on two. We may, perhaps,
he told that we wisn to perpetuate the national
debt. We may hear the trite adage that a public
debt is a public blessing, and other pretty sayings.
But away with all this paltry witticism; the sub-
ject is too serious.
Let it be remembered, sir, once for all, that those
who make the necessity, are those who lay the
tax. If then by this law taxes become necessary,
they impose a tax who vote for this law. Yes, you
are about to impose a tax of two millions on the
American people. Under the circumstances to
which they will be reduced, that tax will be ex-
tremely burdensome. It will be oppressive. You
are about to lay, without necessity, without rea-
son, a most heavy tax. It is madness, it is worse
than madness. You will drive many valuable cit-
izens out of the United States, to avoid the pres-
sure of taxation,into Canada and Louisiana — thus
vou will add to the wealth and strength of ueigh-
ooring nations, of nations who may soon become
hostile. This is treason ! — high treason against
the interests of our country ! Look to it well.
You who vote for this law, shall answer for the
pernicious consequences.
It has been said, and may perhaps be repeated,
that you can reduce the expense below the present
stanoard. You cannot. I do not mean that vou
cannot make a piece of paper in the form of a law
to that effect, but imperious circumstances will ren-
der the reduction impracticable. I ask which
branch of service is to be reduced? Is it the ma-
rine? Already your little force is employed in
blocking jap a piratical port, and you majr to-mor-
row* hear tnat Morocco has taken part with Trip-
oli. This may increase, but cannot diminish the
expense of your Navy. You may indeed destroy
your ships, and leave commerce to take care of
Itself. This I hear is a favorite idea with some
men. But what, in this case, is to become of your
revenue ? A mong the other wise acts of this Con-
gress, we have thrown away every means of sup-
porting Government and paying debts, except those
which commerce may supply. As little is it in
your power to reduce that little force which is
called your Army. Wi thout looking abroad, there
is one circumstance of a domestic nature deserv-
ing of attention. A considerable portion of the
inhabitants of this country is of a particular spe-
cies of the human race. Events have taken place,
at no great distance, which awaken their curiosity
and excite their sympathy. Recent information,
from a neighboring State, exhibits symptoms of a
disposition which may render the operation of mil-
itary force indispensable. I will not dilate on this
subject, it is better that gentlemen listen to the
suggestions of their own minds than to arguments
7th Con.— 10
which it may not be prudent to utter. One thing
however I must mention: the supporters of the act
before us, will be pleased to consider that to sup-
pose the Army can be reduced, would be a reflec-
tion upon the present Administration. We know
they claim the merit of great economy, and we
must therefore presume that they have brought
the Army down to the lowest possible standard. It
anything more can be saved, why is not that saving
now made ? Since, then, there is nc^proposition
to that effect, we are bound (out of resllct to them)
to believe that the idea is inadmissible.
But now, sir let us suppose that your revenue
should be equal to this appropriation. What fol-
fows ? It follows that the appropriation is unne-
cessary. You will observe, tnat even by this law,
every surplus beyond the seven million is subject
to the former appropriations. If, after providing
for the current service, seven or seventeen million
remain, laws lon^ since enacted make that remain-
der part of the sinking fund. Every provision, there-
fore, fs made already for redemption of the whole
of the public debt — every useful provision. That
which is now proposed is useless in so far as it can
apply to the existinc^ means of Government, and
it IS useless in that it can .produce no single cent
to fulfil the pretended intention. But while in
this respect it is unnecessary and useless, it is in
another respect. pernicious. While the revenue
is sufficient, it remains without effect ; but it im-
poses upon the Government a necessity of taxing
the people to the extent of any deficiency in the
revenue, or else to violate the public faith, to be
pledged by this appropriation. What then is the
effect of this law ? Either it is a miserable decep-
tion or else it is an appropriation at once useless
and dangerous.
Mr. Wright. — The Secretary of the Treasury
has told us that this measure is proper. He, sir, has
given us many reasons in the premises. We are
told by the Secretary, bottoming himself, sir, upon
a full view of all the finances of this country, tnat
seven million three hundred thousand dollars may
be appropriated. We must believe him. He is,
the proper Executive officer. This is his measure.
If this bill is rejected, where is the public faith
which gentlemen say so much about? It is ruined.
I believe there is a disposition to resist the Gov-
ernment; but we will support the operations of
Government. We have confidence. Let gentle-
men tell us how they made calculations of what
sums were necessary. I am clear that this mea-
sure is ri^ht, and if it should become necessary to
tax our citizens, they are honest enough to bear it.
The gentleman from New York, says we shall
drive them by the weight of taxes into Canada
and Louisiana. If, sir, we have any citizens so
base that they would, from that cause, or from any
other cause, run away to Canada or to Louisiana,
the sooner they go the better. I don't want any
such citizens. I hope, sir, we shall pass this law,
and not be terrified by the idea that we tnust lay
new taxes.
On the question, Shall the bill pass? it was car-
ried in the affirmative — yeas 17, nays 10, as fol-
lows:
291
HISTORY OF CONGRESS.
292
Senate.
Proceedings,
Apaiu 1802.
YxAS — Messrs. Anderson, Baldwin, Bradley, Breck-
enridge, Brown, Clinton, Cocke, Ellery, T. Foster,
Frankliiij Jackson, Logan, 8. T. Mason, Nicholas,
Stone, Sumter, and Wright.
Nats — Messrs. Dayton, Dwight Foster, Howard, J.
Mason, Morris, Ogden, Olcott, Tracy, Wells, and
White.
So it was Reaolvedy That this bill do pass with
amendments.
Monday, April 26.
Mr. Ellery, from the committee to tvhomwas
referred, on the 23d iostaDt, the bill making an ap-
propriation for the support of the Navy of the
United States for the year one thousand ei^ht
hundred and two, reported amendments, which
were read.
Ordered^ That they lie for consideration.
A message from the House of Representatives
informed the Senate that the House have passed
a bill making appropriations for the Military Es-
tablishment of the United States for the year one
thousand eight hundred and two ; a bill making
appropriations for the support of Government for
the year one thousand eight hundred and two \
and a bill to repeal so much of the acts — the one,
entitled "An act establishing a Mint, and regu-
lating the coins of the United States ;" the other
an act. entitled "An act supplementary to the act
establishing the Mint, and regulating the coins of
the United States," as relate to the establishment
of the Mint; in which bills they desire the con-
currence of the Senate. They insist on their
amendments disagreed to by the Senate to the
. bill, entitled ''An act further to alter and estab-
lish certain post roads," and agree to the confer-
ence proposed by the Senate thereon, and have
appointed managers on their part.
The three bills first mentioned in the message
were read.
The Senate resumed the second reading of the
bill to extend and continue in force the provisions
of an act, entitled "An act giving^ a right of pre-
emption to certain persons who nave contracted
witn John C. Symmes or his associates, for lands
lying between the Miami rivers in the Territory
Northwest of the Ohio, and for other purposes."
Ordered^ That this bill pass to the third reading
as amended.
The bill making appropriations for the Military
Establishment orthe United States in the year
one thousand eight hundred and two, was, by
unanimous consent, read the second time, and re-
ferred to Messrs. Bradley, Howard, and Day-
ton, to consider and report thereon.
The Senate took into consideration the amend-
ments of the House of Representatives to the said
bill, entitled '' An act to ^mend the Judicial sys-
tem of the United States."
Resolved^ That they do concur in all the amend-
ments of the House of Representatives to the
bill, except that which goes to strike out the fif-
teenth section, in which they do not concur.
The bill making appropriations for the support
of Government for the year one thousand eight
hundred and two, was, by unanimous conseoi.
read the second time, and referred to Messrs.
Bradley, Logan, and Wells, to consider and
report thereon.
On motion, it was agreed, by unanimous con-
sent, that the bill to reiieal the acts establishing
the Mint, and regulating the coins of the United
States, be now read the second time.
On the question. Shall this bill pass to a third
reading ? it passed in the negative.
The bill, entitled "An act to regulate and fix
the compensations of the officers of the Senate
and House of Representatives," wa? read the
third time, and passed.
The bill, entitled "An act to abolish the Board
of Commissioners in the City of Washington, and
to make provision for the repayment of loans made
by the State of Maryland for the use of the city,-^
was read the third time.
Resolved^ That this bill do pass as amended.
The Senate resumed the tiiird reading of the
bill, entitled ^'An act for the relief of the widows
and orphans of certain persons who have died, or
may hereafter die, in the naval service of the Uni-
ted States."
On motion to strike out the second section of
the bill, to wit: '
" Sec. 2. And be it further enacted. That if any com-
missioned or warrant officer of the Navy, or commis-
sioned officer of Marines, have died, or shall hereafter
die, by reason of wounds received while in the accaal
service of the United States, or have been lost at sea
or drowned, or shall hereafter be lost at sea or drowned,
while in service as aforesaid, and in the actual line of
his duty, and shall leave a widow, or if not, leave a
child or children, under age, such widow, or audi child
or children, as the case may be, shall be entitled to,
and receive, the half of the monthly pay to which the
deceased was entitled at the time of his death, and for
and duruig the term of five years. And in case of the
death or intermarriage of such widow, before the ex-
piration of the said term of five years, the half pay for
the residue of the term shall go to the child or chil-
dren of such deceased officer while under the age of
sixteen years ; and, in like manner, the allowance to
the child or children of such deceased, in case there he
no widow, shall be paid no longer than daring the
time ^ there is a child or children under the age of six-
teen years.'*
It passed in the affirmative — yeas 16, nays 8, as
follows :
Yeas — Messrs. Anderson, Baldwin, Bradley, Brown.
Clinton, Cocke, Dayton, T. Foster, Franklin, Jackson,
S. T. Mason, Ogden, Olcott, Stone, Sumter, and
Wright.
Nats — Messrs. Ellery, Dwight Foster, Howard. J.
Mason, Morris, Nicholas, Wells, and White.
And having agreed to strike out the third sec-
tion, and to amend the title by striking out the
words ''or may hereafter die," it was
Resolvedj That this bill pass as amended.
The bill, entitled "An act for the relief of The-
odosius Fowler," was read the third time ; and on
the question, Shall this bill pass? it was deter-
mined in the affirmative — yeas 14, nays 10. as
follows :
293
HISTORY OP CONGRESS.
294
APRIL) 1802.
Proceedings.
Senate.
Ykas — Mesars. Anderson, Brown, Clinton, Bayton,
Ellery, T. Foster, Franklin, Howard, J. Mason, Mor-
ris, Nicholas, Ogden, Welb, and White.
Nats— Messrs. Baldwin, Bradley, Cocke, Jackson,
Logan, 8. T. Mason, Olcott, Stone, Sumter, and
Wright.
Resolved, That this bill do pass.
The following Message was received from tHe
President of the United States:
Gentlemen of the Senate^ and
of the House of Representatives:
In pursuance of the act, entitled " An act supple-
mental to the act, entitled *An act for an amicable set-
tlement of limits with the State of Georgia, and author-
izing the establishment of a government in the Missile
sippi Territory," James Madison, Secretary of State,
Albert Gallatin, Secretary of the Treasury, and Levi
Lincoln, Attorney General of the United States, were
appointed Commissioners, to settle, by compromise,
with the Commissioners appointed by the State of
Georgia, the claims and cession to which the said act
has relation. '
Articles of agreement and cession have accordingly
been entered into and signed by the said Commission-
ers of the United States and of Georgia, which, as they
leave a right to Congress to act upon them legisla-
tively, at any time within six months after their date, I
have thought it my duty immediately to communicate to
the Legislature.
• TH. JEFFERSON.
April 26, 1802.
The Message and documents therein referred to
were read, and ordered to be printed for the use
of the Senate.
Mr. Morris, from the committee to whom
was referred the Message of the President of the
United States of the 29th of March last, on the
police of the City of Washington, reported a bill
on that subject, which was read, and, by unani-
mous consent, had a second reading.
On motion, it was
Resolved, That the motion made on the 16th
instant fot an amendment to the Constitution of
the United States respectini^ the choice of Elect-
ors for President and Vice President be postponed
until the next session of Congress.
Tuesday, April 27.
The following Message was received from the
President of the United States :
Gentlemen of the Senate, and
of the House of Representatives :
The Commissioners who were appointed to carry
into execution the sixth article of the Treaty of Amity,
Commerce, and Navigation, between the United States
and Great Britain, having differed in their construction
of that article, and separated in consequence of that
difference, the President of the United States took im-
mediate measures for obtaining conventional explana-
tions of that article, for the government of the Com-
mbsioners. Finding, however, great difficulties oppos-
ed to a settlement in that way, he authorized our Min-
ister at the Court of London, to meet a proposition that
the United States, by the payment of a fixed sum,
should discharge themselves from their responsibility
for such debts as cannot be recovered from the individ-
ual debtors. A convention has accordingly been sign-
ed, fixing the sum to be paid at 600,000 pounds ster-
ling, in three equal and annual instalments ; which has
been ratified by me, with the advice and consent of the
Senate.
I now transmit copies thereof to both Houses of
Congress, trusting that, in the free exerdse of the au-
thority which the Constitution has given them on the
subject of public expenditures, they will deem it for the
public interest to appropriate the sums necessary for
carrying this convention into execution.
TH. JEFFERSON.
ApaiL 27, 1802.
The Message was read, and referred to Messrs.
Nicholas, Dayton, and Logan, to report thereon
by bill or otherwise.
A message from the House of Representatives
informed the Senate that they have passed a bill
to incorporate the inhabitants of the City of Wash-
ington, in the District of Columbia, in which they
desire the concurrence of the Senate.
The Senate resumed the second reading of the
bill to enable the people of the eastern division of
the Territory Northwest of the river Ohio to form
a constitution and State government.
On motion, section sixth, to strike out the fol-
lowing words, reported by the committee to be
struck out, and which report was amended, as
follows :
'* Provided, That the convention of the said State
shall, on its part, assent that each and every tract of
land sold by Congress, from and after the 30th day of
June next, shall be and remain exempt from any tax
laid by order or under authority of the State, whether
for State, county, township, or any other purpose what-
ever, for the term of five years from and after the day
of sale :"
It passed in the negative — yeas 12, nays 14, as
follows :
Yeas — Messrs. Bradley, Brown, Dayton, D wight
Foster, Howard, J. Mason, Morris, Ogden, Olcott,
Tracy, Wells, and White.
Nats — Messrs. Anderson, Baldwin, Breckenridge,
Clinton, Ellery, T. Foster, Franklin, Jackson, Logan,
S. T. Mason, Nicholas, Stone, Sumter, and Wright
On motion, to strike out the words reported by the
committee to be struck out of section sixth, and
amended, as follows :
"Third, That one-twentieth part of the net proceeds
of the lands lying within the said State, sold by Con-
gress, from and after the thirtieth day of June next,
after deducting all expenses incident to the same, shall
be applied to the laying out and making public roads,
leading from the navigable waters emptying into the
Atlantic to the Ohio, or to the navigable waters thereof,
and continued through the said State : such roads to be
laid out under the authority of Congress, with the con-
sent of the several States through which the road
shall pass :"
It passed in the negative— yeas 12, nays 14, as
follows :
Yeas — Messrs. Bradley, Brown, Dayton, Dwight
Foster, Howard, J.* Mason, Morris, Ogden, Olcott,
Tracy, Wells, and White.'
Nats — Messrs. Anderson, Baldwin, Breckenridge,
Clinton, Ellery, T. Foster, Franklin, Jackson, Logan,
S. T. Mason, Nicholas, Stone, Sumter, and Wright
296
HISTORY OF CONGRESS.
296
Senate.
Proceedings,
April, 18Q2.
On motion to strike out these words, reported
by the committee to be struck out of the sixth
section :
** Second, That the six miles reservation, including
the salt springs, commonly called the Scioto Salt
Springs, the salt springs near the Muskingum river,
and in the military tract, with the sections of land
which include the same, shall be granted to the said
State, for the use of the people thereof, the same to be
used under such terms, and conditions, and regulations,
as the Legislature of the said State shall direct, provid-
ed the said Legislature shall never sell nor lease the
same for a longer period than ten years :"
It passed in the negative — yeas 8, nays 18, as
follows :
YEi.8 — Messrs. Brown, Dwight Foster, Howard, J.
Mason, Morris, Ogden, Olcott, and Tracy.
Nats — Messrs. Anderson, Baldwin, Bradley, Breck-
enridge, Clinton, Dayton, Ellery, T. Foster, Franklin,
Jackson, Logan, S. T. Mason, Nicholas, Stone, Sumter,
Wells, White, and Wright.
And the bill being further amended, it was or-
dered to the third readiufi; as amended.
The bill respecting the lands of the United
States in the Northwestern Territory was read
the third time.
Resolved, That this bill do pass, that it be en-
grossed, and that the title thereof be "An act to
extend and continue in force the provisions of an
act, entitled ^An act to c^ive a right of pre-emp-
tion to certain persons who have contracted with
John ClevesSymmes, or his associates, for lands
lyin^ between the Miami rivers, in the Territory
Northwest of the Ohio, and for other purposes.
The bill sent from the House of Representa-
tives, entitled "An act to incorporate the inhabit-
ants of the City of Washington, in the District of
Columbia," was read, and ordered to the second
reading.
The Senate resumed the second reading <of the
bill, entitled "An act tq provide for the establish-
ment of certain districts, and therein to amend an
act. entitled ^An act to regulate the collection of
duties on imports and tounage,' and for other pur-
poses."
And, after debate, Ordered, That it be recom-
mitted CO the original committee, further to report
thereon.
Wednesday, April 28.
Mr. Bradley, from the committee to whom
was referred, on the 26ih instant, the bill making
appropriations for the Military Establishment of
the United States, in the year one thousand eight
hundred and two, reported it without amendment.
The Senate resumed the third reading of the
bill, entitled "An act to repeal in part the act, en-
titled 'An act regulating foreign coins and for
other purposes."
Resolved, That this bill pass with amendment.
Mr. Tracy notified the Senate that he should,
to-morrow, ask leave to bring in a bill to carry
into effect the resolution of Congress, passed on
the 17th day of June, 1777, for erecting a monu-
ment to the memory of General Wooster.
The Senate took into consideration the amend-
ments reported by the committee to the bill, enti-
tled "An act to establish the compensations of the
officers employed in the collection of the duties
on imports and tonnage, and for other purposes;"
which report was in part adopted.
. Ordered, That the bill pass to the third reading
as amended.
A message from the House of Representatives
informed the Senate that they have passed a bill
to revive and continue in force an act, entitled
"An act for establishing^ trading houses with the
Indian tribes;" in which they desire the concur-
rence of the Senate.
The bill, entitled "An act to revive and continue
in force an act, entitled 'An act for establishing
trading houses with the Indian tribes ;" was read,
and, by unanimous consent, had a second reading.
Ordered, That the further consideration there-
of be postponed.
Mr. Brown, from the committee to whom was
referred, on the 17th instant, the petition of the
traders, pilots, builders, and others concerned in
navigation, in the district of St. Mary's riyer, re-
ported that the petitioners have leave to withdraw
their petition ; and the report was adopted.
Mr. Brown, from the said committee, to whom
was also referred the bill to provide for the estab-
lishment of certain districts, and therein to amend
an act, entitled "An act to regulate the collection
of duties on imports and tonnage, and for other
purposes," reported it without amendment.
The bill, entitled "An act to enable the people
of the eastern division of the Territory Northwest
of the river Ohio to form a constitution and State
government^ and for the admission of such State
into the Union on an equal footing with the origi-
nal States, and for other purposes," was read the
third time.
On motion to strike out, section 6th. line 18tb,
after the word "sell," the words "nor lease the
same for a longer period than ten years," and in-
sert "the same, nor derive a revenue from the
same;"
It passed in the negative — yeas 6, nays 14, as
follows:
Yeas — Messrs. Dwight Foster, Morris, Nicholas,
Ogden, Olcott, and Tracy.
Nats — Messrs. Anderson, Baldwin, Breckenridge,
Brown, Clinton, Ellery, T. Foster, Franklin, Jackson,
Logan, S. T. Mason, Stone, Sumter, and Wright.
Same section, line 29th, on motion to strike out
the word "sold," and insert the word "granted" —
it passed in the negative — yeas 8, nays 14, as fol-
lows :
Yeas — Messrs. Bradley, Dwight Foster, Howard,
Morris, Ogden, Olcott, Tracy, and Wells.
Nats — Messrs. Anderson, Baldwin, Breckenridge,
Clinton, Ellery, T. Foster, Franklin, Jackson, Logan,
8. T. Mason, Nicholas, Stone, Sumter, and Wright.
And the bill bein^ further amended, on the
question. Shall this bill pass as amended ? it was
determined in the affirmative — yeas 16, nays 6, as
follows :
Yeas — Messrs. Anderson, Baldwin, Bradley, Breck-
enridge, Brown, Clmton, Ellery, T. Foster, Fnnklio,
297
HISTORY OF CONGRESS.
298
April, 1802.
Proceeding».
Senate.
•
JackBon, Logan, 8. T. Mason, NicholaB, Stone, Sum-
ter, and Wright.
Nits — Messrs. Dwight Foster, Howard, MoAis, Og-
den, Olcott, and Tracy.
So it was Resolvedj That this bill do pass with
amend me Dts.
A message from the House of Representatives
informed the Senate that the House have passed
a bill, entitled '*An act additional to, and amenda-
tory of« an act, entitled 'An act concerning the
District of Columbia ;" in which they desire the
concurrence of the Senate.
The bill was read, and ordered to the second
reading.
Thursday. April 29.
A&nreeably to notice given yesterday, Mr. Tract
had leave to bring in a bill to carry into eifect the
resolution of Congress, passed on the 17th day of
June, 1777, for erecting a monument to the mem-
ory of Greneral Woo^ter ; which was read, and,
by unanimous consent, had a second reading.
Ordered^ That it be referred to Messrs. Tracy,
Jackson, and Nicholas, to consider and report
thereon.
Mr. Bradley, from the committee to whom
was referred, on the 26th instant, the bill making
appropriations for the support of Gbvernment for
the year one thousand eignt hundred and two, re-
ported amendments ; which were read and adopted.
Ordered, That this bill pass to the third reading
as amended.
The bill additional to, and amendatory of, an
act. entitled ''An act concerning the District of
Columbia," was read the second time, and refer-
red to Messrs. S. T. Mason, Howard, and Stone,
to consider and report thereon.
The Senate took into consideration the amend-
ments reported by the committee to the bill mak-
ing an appropriation for the support of the Navy
of the United States for the year one thousand
eight hundred and two ; which were agreed to.
On motion further to amend the bill, by adding
a new sectioa, as follows:
"Sec. 3. And be it further enacted, That the Presi-
dent of the United States be, and he is hereby, aut)ior-
ized to dismiss so many of the officers of the Marine
Corps as will reduce their number and grades in legal
proportion to the number of marines retained in service,
and that the officers who may be so deranged shall be
entitled to receive months' pay : "
It passed in the affirmative — yeas 15, nays 6, as
follows:
Ybas — Messrs. Anderson, Baldwin, Bradley, Breck-
enridge. Brown, Clinton, EUery, T. Foster, Franklin,
Jackson, Logan, S. T. Mason Stone, Sumter and
Wright.
Nats — ^Messrs. Bwight Foster, Howard, Ogden,
Olcott, Tracy, and Wells.
Ordered, That this bill pass to the third reading
as amended.
The bill making appropriations for the Military
Establishment ofthe United States in the year
1802, was read the second time.
Ordered, That this bill pass to a third reading.
The bill, entitled '^An act to amend an act to
establish the compensations of the officers employ-
ed in the collection of the duties on imports and
tonnage, and for other purposes," was read the
third time.
Resolved, That this bill pass as amended.
Mr. Ogden, from the committee to whom was
referred, on tne 23d instant, the petition of John
Cleves Symmes, made report ; which was read^
and ordered to lie for consideration.
The bill to incorporate the inhabitants of the
City of Washington, in the District of Colombia,
was read the second time, and referred to Messrs.
S. T. Mason, Wright, and Howard, to consider
and report thereon.
The Senate resumed the second reading of the
bill respecting the police of the District of Co«
lumbia.
Ordered, That the further consideration there-
of be postponed.
The Senate resumed the second reading of the
bill to provide for the establishment of certain dis-
tricts, and therein to amend an act, entitled ^'An
act to regulate the collection of duties on imports
and tonnage, and for other purposes."
Orderea, That it pass to a third reading.
The Senate resumed the second reading of the
bill, entitled "An act to revive and contmue in
force an act for establishing trading houses with
the Indian tribes."
On motion, it was agreed, by unanimous consent,
that the bill be now read toe third time.
Reaolted, That this bill do pass.
Ordered, That the committee to whom was re-
ferred, on the 9th of March last, the petition of
Albert Russel, and^others, be discharged ; and that
the petitioners have leave to withdraw their pe-
tition.
Ordered, That the committee appointed on the
15th February last, on that part of the Message
of the Preddent of the United States which refers
to the report of the Secretary of War, on the sub-
ject of the islands in the lalces and rivers of our
nothern boundary, and of certain lands in the neigh-
borhood of our military posts, and to whom also
was referred the letter of Governor Harrison, be
discharged.
Ordered, Thatthecommittee appointed the 11th
of March last, on the bill to provide for the more
convenient organization of the courts of the Uni-
ted States within the State of Tennessee ; also,
the committee, appointed the 22d of March last,
on the bill to alter the time of holdiag the district
court in the district of Maine, be respectively dis-
charged.
Ordered, That Mr. Sumter be on the commit-
tee to whom was referred the bill for the relief
of Fulwar Skipwith, in place of Mr. Dayton,
absent.
Ordered, That the Message of the President of
the United States of the 26th instant, relative to
articles of agreement and cession wito the State
of Georgia, be referred to Messrs Tracy, S. T.
Mason, and Breckenridgb, to consider and report
thereon.
Mr. S. T. Ma»on presented the petition of Da-
299
HISTORY OF CONGRESS.
300
Senate.
Proceedings,
April, 1802.
yid Brown, of Massachusetts, praying compensa-
tion for his sufferings while imprisoned under sen-
tence of the judicial court, for seditious practices;
and the petition was read, and ordered to lie on
the table.
Friday, April 30.
Mr. Tract, from the committee to whom was
referred, on the 2dth instant, the bill, to carry into
effect a resolution of Congress for erectine a mon-
ument to the memory of the late General David
Wooster, reported amendments ; which were read,
and ordered to lie for consideration.
The Senate resumed the second reading of the
bill respecting the police of the District of Co-
lumbia.
Ordered. That the further consideration thereof
be postponed until to-morrow.
Mr. Mason presented sundry petitions of the
inhabitants of Ueorgetown, on tne Potomac, pray-
ing to be authorized by law to assess and collect
the necessary taxes for the paving and improve-
ment of that town.
Ordered^ That these petitions be referred to the
committee who have under consideration the bill,
entitled "An act to incorporate the inhabitants of
the City of Washington."
The Senate resumed the consideration of the
report of the committee on the petition of John
Cleves Symmes, which was adopted, as follows:
1. That, in the year 1788, the petitioner entered into
a contract with the United States, upon a fair consid-
eration, for the purchase of one million of acres of land,
in the Northwestern Territory.
2. That, in conseqaence of such contract, the peti-
tioner made a settlement upon th^ tract, and sold many
C^Is thereof to adventurers, who went together with
, into that new country, and located themselves
there.
3. That, in the year 1794, the petitioner obtained a
patent, under the authority of a law which enabled the
President of the United States to make the same, for
such proportion of the one million of acres, which had at
that time been paid for, pursuant to the aaid contract,
amounting to 311,682 acres of the said million of acres
of land.
4. That the petitioner, after the said in part fulfilment
of the contract on the side of both the parties to the same,
proceeded to make sales (as he before had done in respect
to the lands for which he had lately received the patent,
as above mentioned) in the residue of the one million
of acres, expecting to make the title when he should re-
ceive his patent thereof, agreeably to his contract, as he
had before praclised.
5. That no authority has been given by law, or other-
wise, that can be found by your committee, whereby the
said contract can be carried into execution on behalf of
the United States, upon the payment of the sums fur-
ther stipulated to be paid by the petitioner, agreeably to
his contract, whereby he is entitled to a patent, upon
payment of such stipulated sums ; which payments the
petitioner avers he always has been, and still is, ready
to pay and perform, as thereunto required by his con-
tract.
6. That your committee, from the papers and docu-
ments laid before them by the petitioner, or from the
statement which he has made, do not perceive tiiat the
petitioner has done any one act, or omitted to do any act,
whereby he has forfeited any right to the full benefit of
his contract, before stated.
7. That no authority exists, by law, enabling any per-
son to carry into execution the said contract on behtif
of the United States ; but, on the contrary, that two laws
have been passed predicated upon the idea that the ob-
ligations of the United States, under the said contract,
have ceased and determined ; under the operation of
which laws the said petitioner states, and your commit-
tee believe, that the said petitioner is suflering very great
hardships, tending to the utter destruction and total
waste of his whole property.
8. Your committee, the premises considered, beg
leave to recommend the adoption of the resolution ac-
companying this report :
Resolved, That the President of the United States be
requested to direct the Attorney General to examine into
the contract entered into between the United States and
John Cleves Symmes, Esq. and others, bearing date on
the 15th of October, 1788, and all the contracts and
laws relative thereto ; and all the transactions which
may legally or equitably affect the same, as to as they
may come to his knowledg^e ; and to make a repoit of
the same to the Senate, at their next session, together
vrith his opinion whether the said John Gleres Symmes
has any claim, and what, upon the United States, in
virtue of the said contract, or any other contract, or law
predicated upon the same : and that the further consid-
eration of the petition of said John Cleves Symmes, Esq.
of and concerning the premises, be postponed to the first
day of the next session of Congress.
And the report was adopted.
Orderec^, That the Secretary lay this resolution
before the President of the United States.
A message from the House of Representatives
informed the Senate that the House have passed
a bill making an appropriation to carry into exe-
cution the sixth article of the Treaty of Amity,
Commerce, and Navigation, between the United
States and Great Britain, in which they desire
the concurrence of the Senate.
Thev agree to the amendments of the Senate
to the bill, entitled "An act to abolish the Board
of Commissioners in the City of Washington, and
to make provision for the repayment of loans
made by tne State of Maryland for the use of the
city," with amendments; in which they desire the
concurrence of the Senate. They have passed a
resolution authorizing the President of the Senate
and the Speaker of tne House of Representatives
to adjourn their respective Houses on Saturday
the 1st of May, in which they, desire the concur-
rence of the Senate.
The Senate resumed the consideration of the
amendments of the House of Representatives to
the amendments on the bill, entitled *^An act to
abolish the Board of Commissioners in the City of
Washington, and to make provision for the repay-
ment of loans made by the State of Maryland for
the use of the city," and agreed thereto. '
The bill, entitled "An act making an appro-
priation for carrying into effect the convention
between the United States of America and His
Britannic Majesty," was read and ordered to the
second reading.
The resolution of the House of Renreseotatives,
301
HISTORY OF CONGRESS.
302
Mat, 1802.
Proceedings,
Sena-te.
authorizinff the President of the Senate and the
Speaker of the House of Representatives to ad-
journ their respective Houses on Saturday the first
day of May, was read,
The bill, entitled '^An act making appronria-
tions for the Military Establishment of the Uni-
ted States in the year one thousand eight hundred
and two," was read a third time and passed.
The bill, entitled "An act making appropria-
tions for the support of Government for tne year
one thousand eight hundred and two," was read
the third time,
Resolvedj That this bill do 'pass as amended.
The bill making an ap}>ropriation for the sup-
port of the Navy of the United States, for the year
one thousand eight hundred and two, was read the
third time as amended.
On motion to strike out the third section, agreed
to yesterday, it passed in the affirmative — yeas
12, nays 11, as follows:
YxA8 — Messra. Bradley, Brown, Dwight Foster,
Howard, Morris, Nicholas, Ogden, Okott, Tracy, Wells,
White, and Wright.
Nats — Messn. Anderson, Baldwin, Breckemidge,
Clinton, Cocke, Elksiy, Franklin, Logan, 8. T. Mason,
Stone, and Sumter.
Besohed, That this bill do pass with the amend-
ments.
The bill, entitled "An act to provide for the
establishment of certain districts, and therein to
amend an act, entitled 'An act xto regulate the
collection of duties on imports and tonnage, and
for other purposes," was read the third time, and
passed with an amendment.
Mr. Bradley, from the committee* to whom
was referred, on the 6th and 7th instant, the peti-
tion of Elijah Brainard, also, the petition of Jona-
than Snowden, reported that the consideration of
said petitions be severally postponed to the next
session of Congress, and that the committee to
whom the same were referred be discharged, and
the report was adopted.
Mr. S. T. Mason, from the committee to whom
was referred, on the 29th instant, the bill to in-
corporate the inhabitants of the City of Washing-
ton, in the District of Columbia, reported amend-
ments; which were read, and ordered to lie for
consideration.
On motion, it was
Ordered, That the bill for the better security of
public money and property in the hands of public
officers and agents, as amended by the House of
Representatives, be postponed to tne next session
of Congress.
Mr. ». T. Mason, from the committee to whom
was referred, on the 29th instant, the bill additional
to, and amendatory of, an act, entitled '^An act
concerning the District of Columbia;" reported
amendments, which were read, and ordered to He
for consideration.
SATDRnAY, May 1.
Mr. Tracy, from the committee to whom was re-
ferred, on the 29th April last, the Message from the
President of the United States of the 26th, accom-
panying certain articles of agreement and' cession
which have been entered into and signed by the
Commissioners of the United States and the
Commissioners of the State of Georgia, made
report — ,
" That at this very late hour of the session, and from
a total want of all mformation and facts which would
be necessary to enable the committee to form a just
opinion on Uie subject of the said agreement, the com*
mittee have it not in their power to recommend any
measure as necessary to be adopted on the sabject."
The Senate took into consideration the resolu-
tion of the House of Representatives authorizing
the President of the Senate and Speaker of thi&
House of Representatives to adjourn their re-
spective Houses on the first day of May, and agreed
to amend the same, by striking out the word
"first," and inserting the word "third."
The Senate took into consideration the amend-
ments reported by the committee to the bill, to
amend an act, entitled "An act for the relief of
sick and disabled seamen, and for other purposes ;"
and, having agreed thereto, the bill was ordered
to the third reading as amended.
Mr. Jackson, from the managers at the confer-
ence on the part of the Senate, reported that the
Senate recede from some, ana adhere to other,
amendments to the bill further to alter and establish
certain i)ost roads ; and the report was adopted.
The bill makipg an appropriation for carryinfi^
into effect the convention between the United
States of America and His Britannic Majesty,,
was read the second time.
Ordered^ That it pass to a third reading.
The Senate took into consideration the amend-
ments of the committee to the bill, additional to,
and amendatory of "An art concerning the Dis-
trict of Columbia," and, having agreed thereto, the
bill was ordered to the third reading as amended.
Mr. Morris from the committee to whom was
referred, on the 23d of April last, the bill for the
relief or Fulwar Skipwith, reported it without
amendment.
Ordered, That it pass to a third reading.
On motion by Mr. Ooden, that it be
Resohedf That a committee be appointed to bring in
a bill for the repealing so much of any former law, as
authorizes a certain provisory agreement, lately made
and entered into by Commissioners on the part of the
United States, and Commissioners on the part of the
State of Georgia, bearing date on the 24ui of April,
1802, and by which the same may be binding and con-
clusive on the United States :
It passed in the negative — yeas 11, nays 12, as
follows :
Ybas— Messrs. T Foster, Dwight Foster, Franklin,
Howard, Moms, Ogden, Olcott, Tracy, Wells, White,
and Wright.
Nats— Messrs. Anderson, Baldwin, Bradley, Breck-
enridge, Clinton, Ellery, Jackson, Logan, 8. T. Mason,
Nicholas, Stone, and Sumter.
On motion it was
Resolved, That the committee on the Message
from the President of the United States, of the 27th
instant, on the subject of the British convention,
be discharged.
303
HISTORY OF CONGRESS.
304
Sbna-te.
Proceedings,
May, 1802.
Monday, May 3.
A message from the House of Representatives
informed the Senate that the House agree to the
report of the committee of conference on the bill,
entitled ^^ An act further to alter and establish cer-
tain post roads." They have passed a resolution
to amend the Constitution of the United States;
in which they desire the concurrence of the Senate.
The resolution was read as follows :
Resohedt by the Senate and House of Representatives
of the United States of America in Congress assembled^
two-thirds of both Houses concurring , That the follow-
ing article be proposed to the Legislatures of the several
States as *an amendment to the Constitution of the
United States, which, when ratified by three-fourths of
the said Legislatures, shall be valid to all intents and
purposes as part of the said Constitution, to wit :
<* That in all future elections of President and Vice
President the persons voted for shall be particularly
designated, by declaring which is voted for as President
and which as Vice President."
Ordered, That it lie for consideration.
The bill, entitled "An act to incorporate the in-
habitants of the City of Washington, m the District
of Columbia," was read the third time, and further
amended.
On the question, shall this bill pass as amended ?
it was determined in the affirmative — yeas 15,
nays 5, as follows :
YxAS — Messrs. Anderson, Baldwin, Breckenridge,
Brown, Clinton, Codce, Ellery, Dwight Foster, Frank-
lin, Logan, S. T. Mason, Nicholas, Olcott, Stone, and
Sumter.
Nats — Messrs. Howard, Morris, Ogden, Tracy, and
WeUs
Resolved, That this bill do pass with amend-
ments.
The bill entitled ''An act to amend an act, en-
tided ^An act for the relief of sick and disabled
seamen, and for other purposes," was read the
third time.
On the question, Shall this bill pass as amended ?
it was determined in the affirmative — yeas 15,
nays 5, as follows :
Yeas — Messrs. Anderson, Baldwin, Breckenridge,
Brown, Clinton, Cocke, Ellery, Franklin, Logan, S. T.
Mason, Morris, Nicholas, Olcott, Stone, and Sumter.
Nats — Messrs. Dwight Foster, Howard, Odgen,
Tracy, and Wells.
Resolved, That this bill do pass with amend-
ments.
The bill entitled ^'An act additional to, and
amendatory of, an act. entitled 'An act concern-
ing the District of Columbia," was read the third
time ; and being further amended.
Resolved^ That this bill do pass as amended.
The bill entitled "An act making appropriation
for carrying into effect the convention between
the United States of America and his Britannic
Majesty," was read the third time and passed.
A message from the House of Representatives
informed the Senate that the House concur in the
amendment of the Senate to the bill, entitled ''An
act additional to, and amendatory of, an act, en-
titled ^An act concerning the District of Colum-
bia," with an amendment; in which they desire
the concurrence of the Senate.
The Senate took into consideration the amend-
ment of the House of Representatives to their
amendment to the bill last mentioned.
Resolved, That they do concur therein.
The Senate resumed the second reading of the
bill respecting the police of the District of Colum-
bia; and, on motion, the further consideration
thereof was postponed until the third Monday in
November next.
The bill, entitled "An act for the relief of Pul-
war Skipwith," was read the third time and passed.
The Senate took into consideration the resola-
tion of the House of Representatives of the 1st of
May, for an amendment to the Constitution of the
United States.
And, on the question. Will the Senate concur
therein? it passed in the negative — yeas 15, nays
8, as follows :
YxAs — Messrs. Anderson, Baldwin, Breckenridge.
Brown, Clinton, Cocke, Ellery, T. Foster, Franklin,
Jackson, Logan, S. T. Mason, Nicholas, Sumter, and
Wright.
Nats — Messrs. Dwight Foster, Howard, Moms, 01-
cott, Ogden, Stone, Tracy, and Wells.
So the question was lost, twa-thirds of the Sen-
ators present not concurriiiigr therein.
On motion that the petition of David Broira be
postponed until the next session of Congress, it
passed in the affirmative.
On motion that it be
'* Resolved, That the President of the United States
be requested to cause to be laid before this House, at the
next meeting of Congress, authenticated copies o( the
proceedings in the Courts of the United S^tes, in ill
cases in which fines and imprisonments have been in-
flicted upon the individuals under the act commonl;
called the Sedition act; and, also, in all cases, if any
such there be, in which fine and imprisonment have
been inflicted upon individuals in the said courts, under
the common law of England :"
It passed in the negative.
Mr. Tracy presented the memorial of Darid
Austin, ^'praying Legislative attention to the or-
der of Providence in the affairs of the nation ;'' and
the memorial was read.
On motion the Senate adjourned to half past
seven o'clock this evening.
Monday Evening, 7j o'clock.
A messa&^e from the House of Representatives
informed the Senate that the House have ap-
pbinted a committee on their part, with such as
the Senate may appoint, to wait on the President
of the United States, and notify him that, unless
he hath any further communications to make to
the two Houses of Congress, they are ready to
adjourn, and they desire the appointment of a
committee on the part of the Senate.
The Senate took into consideration the resolu-
tion of the House of Representatives appointing a
committee, jointly, with such as the Senate ina)'
appoint, to wait on the President of the United
States and notify him of the proposed adjourn-
ment of the two Houses of Congress ; and
305
HISTORY OF CONGRESS.
306
May, 1802.
Adjournment.
Senate.
Reaolvedy That they do concur therein, and that
Messrs. Ellert and Clinton be the committee
on the part of the Senate.
Mr. Ellert, from the joint committee, report-
ed that they had waited on the President or the
United States, agreeably to the vote of the two
Houses, and that he informed them hfe had no far-
ther business to communicate.
Ordered^ That the Secretary notify to the
House of Representatives that the Senate, having
completed the business of the session, are ready to
adjourn.
A message from the House of Representatives
informed the Senate that the House of Represent-
atives, having completed the business before them,
are about to adjourn.
Whereupon, the Senate adjourned to the first
Monday in December next.
PROCEEDINGS AND DEBATES
OF TBB
HOUSE OF REPRESENTATIVES OF THE UNITED STATES,
AT THE FIRST SESSION OF THE SEVENTH CONGRESS, BEGUN AT THE CITY OP
WASHINGTON, MONDAY, DECEMBER 7, 1801.
Monday, December 7, ]801.
This being the day appwinted by the Constitu-
tion for the annual meeting of Congress, the fol-
lowing members of the House of Representatives
api>eared, produced their credentials, and took
their seats m the House, to wit :
From New Hampshire — Abiel Foster, George P.
Upham, and Samnei Tenney.
, Frtnn ManachueetU — WilUam Eustis, John Bacon,
Phanuel Bishop, Joseph B. Vaxnum, Richard Cutts,
Lemuel Williams, William Shepard, Ebenezer Mat-
toon, Nathan Reed, Josiah Smith, and Manasseh Cntler.
From Rhode Island — Thomas Tillinghast, and Jo-
seph Stanton, jr. '
From Conneetieui — Roger Griswold, Samuel W.
Dana, John Davenport, Calvin (}oddard, Benjamin
Tallmadge, Ellas Perkins, and John C. Smith.
From Vermont — Israel Smith.
From New York — Samuel L. Mitchill, Philip Van
Cortlandt, Theodorus Bailey, John Smitii, Benjamin
Walker, Thomas Morris, Kilhan K. Van Rensselaer,
Lucas Elmendorf, David Thomas, and John P. Van
Ness.
From New Jerset^ — John Condit, James Mott, Wil-
liam Helms, Henry Southard, and Ebenezer Elmer.
From Pennsylvania — William Jones, Michael Leib,
John Smilie, William Hoge, Isaac Vanhome, Joseph
Heister, Robert Brown, Henry Woods, John A. Hanna,
John Stewart, Thomas Boude, and Joseph Hemphill.
From Delaware— J smea A. Bayard.
From Mcaryland — John Archer, Joseph H. Nichol-
son, Samuel Smith, Richard Sprigg, John Dennis, and
Thomas Plater.
From Virginia — Thomas Newton, ir., John Ran-
dolph, jr., George Jackson, Philip R. Thompson, John
Taliaferro, John Stratton, Wilham B. GUes, Abram
Trigg, John Trigg, Anthony New, John Smith, David
Holmes, Richard Brent, Edwin Gray, and Matthew
Cly.
From Kentucky — ^Thomas T. Davis, and John
Fowler.
From North Carolina — Nathaniel Macon, Willis
Alston, Richard Stanford, Charles Johnson, Archibald
Henderson, and John Stanley.
From Tennessu — William Dickson.
From South Caro/ino— Thomas Sumter, Thmnas
Moore, and Thomas Lowndes.
J^rom Georgia — ^John Milledge.
From the Northwest Territory — Paul Fearing.
From Mssissippi Territory — Narsworthy Hunter.
A quorum, consisting of a majority being pres-
ent, the House proceeded, by ballot, to the choice
of a Speaker ; and, upon examining the ballots,
a majority of the votes of the whole House was
found in favor of Nathaniel Macon, one of the
Representatives for the State of Nortn Carolina :
Wnereupon, Mr. Macon was conducted to the
Chair, and he made his acknowledgments to the
Housd, as follows :
'^Gxhtlexxk: Accept my sincere thanks for the
honor you have conferred on me, in the choice just
made. The duties of the Chair will be undertaken
with great diffidence indeed ; but it shall be my constant
endeavor to discharge them with fidelity and impar-
tiaUty."
The House proceeded, in the same manner^ to
the appointment of a Clerk ; and, upon examining
the tallots, a majority of the Whole House was
found in favor of John Beck let.
The oath to support the Constitution of the
United States, as prescribed by law, was then ad-
ministered by Mr. Griswold, one of the Repre«
sentatives for the State of Connecticut, to the
Speaker; and then the same oath, or affirmation,
was administered, by Mr. Speaker, to each or
the members present.
A message from the Senate informed the House
that a quorum of the Senate is assembled, and
ready to proceed to business ; and that, in the ab-
sence of the Vice President, they have elected the
honorable Abraham BALnwiN, President of the
Senate, j97t> tempore.
Ordered, That a message be sent to the Senate
to inform them that a quorum of this House is
assembled, and have elected Nathaniel Macon,
one of the Representatives of the State of North
Carolina, their Speaker, and are now ready to
goceed to business ; and that the Clerk of this
ouse do go with the said message.
The House proceeded, by ballot, to the choice
of a Sergeant-at- Arms, Doorkeeper, and Assistant
Doorkeeper ; and, upon examining the ballots, a
majority of the votes of the whole House was found
in favor of Joseph Wheaton, as Sergeant-at-
Arms, and, also, an unanimous vote in favor of
Thomas Claxton and Thomas Dunn, sev-
erally, the former as Doorkeeper, and the latter
as Assistant Doorkeeper.
A message from the Senate informed the
House that the Senate have appointed a com-
311
HISTORY OF CONGRESS.
312
H. OF R.
Proceedings.
December, 1801 .
mittee oq their part, jointly, with such committee
as may be appomted on the part of this House, to
wait on the President of the United States, and
inform him that a quorum of the two Houses is
assembled, and ready to receive any communi-
cations he may think proper to make to them.
The House proceeded to consider the said mes-
sage of the Senate, and concurred therein.
Ordered^ That Mr. Samuel Smith, Mr. Gris-
woLD, and Mr. Davis, be appointed a committee
on the part of this House, for the purpose ex-
pressed m the message of the Senate.
On motion, it was
Resolved. That the rules and orders of proceed-
ing established by the late House of Representa-
tives, shall be deemed and taken to be the rules
and orders of proceeding to be observed in this
House, until a revision or alteration of the same
shall take place.
Ordered^ That a committee be appointe.1 to
prepare and report standing rules and orders of
Sroceeding to be observed in this House ; and that
Ir. Varndm, Mr. Giles, Mr. Leib, Mr. Daven-
port, and Mr. Henderson, be the said committee.
Ordered^ That the Clerk of this House cause
the members to be furnished, during the present
session, with three newspapers to each member,
such as the members, respectively, shall choose,
to be delivered at their lodgings.
Mr. Samuel Smith, from the joint committee
appointed to wait on the President of the United
States, and notify him that a quorum of the two
Houses is assembled and ready to receive any
communication he may think proper to make to
them, reported that the committee had performed
that service, and that the President signified to
them that he would make a communication to this
House, to-morrow, by message.
A message from the Senate informed the House
that the Senate have agreed to a resolution ap-
pointing a committee, on their part, jointly with
such committee as may^ be appointed on the part
of this House, to take into consideration a state-
ment made by the Secretary of the Senate, re-
specting books and maps purchased pursuant to a
late act of Congress, and to make report respect-
ing the future arrangement of the same ; to wnich
they desire the concurrence of this House.
The House proceeded to consider the said reso-
lution : Whereupon,
Ordered^ That Mr. Nicholson, Mr. Bayard,
and Mr. Randolph, be appointed a committee
on the part of this House, pursuant thereto.
Resolved^ That, unless otherwise ordered, the
daily hour to which the House shall stand ad-
journed, during the present session, be eleven
o'clock in the forenoon.
Tuesday, December 8.
Several other members, to wit : from Pennsyl-
vania Andrew Grego ; from Virginia, Samuel J.
Cabell; from North Carolina, James Holland;
and from South Carolina William Butler ; ap-
peared, produced their credentials, and took their
seats in the House ; the oath to support the Con-
stitution of the United States being first admin-
istered to them by Mr. Speaker, according to law.
A petition of John McDonald, late of the city
of Philadelphia, was presented to the House and
read, praving that he may be employed to super-
intend tne arrangement and safe-keeping of the
books intended for the library of the two Houses of
Congress; and that he may receive such com-
pensation for his services, in that capacity, as to
the wisdom of Congress shall seem meet.
Ordered^ That the said petition be referred to
the committee appointed yesterday^ on the {nrt
of this House, jointly with the committee appoint-
ed by the Senate, to take into consideration a
statement made by the Secretary of the Senate,
respecting books and maps purchased pursuant to
a late act of Congress, and to make report respect-
ing the future arrangement of the same.
The following Committees were appointed pur-
suant to the standing rules and orders of the House,
viz:
Committee of Elections — Mr. Milledge, Mr.
Tenney, Mr. Condit, Mr. Dennis, Mr. Hanna.
Mr. Stanley, and Mr. John Taliaferro.
Committee of Revised and Unfinished Business,
Mr. Davenport, Mr. Clay, and Mr. Alston.
Committee of Claims — John Cotton Smith,
Mr. Gregg, Mr. Holmes, Mr. Mattoon, Mr-
JoHN Smith, of New York, Mr. Plater, and Mr.
Moore.
Committee of Comm^erce and Manufactures —
Mr. Samuel Smith, Mr. Eustis, Mr. Dana, Mr.
Mitchill, Mr. Jones, Mr. Newton, and Mr.
Lowndes.
Resolved, That a standing Committee of Ways
and Means be appointed, whose duty it shall be
to take into consideration all such reports of the
Treasury Department, and all such propositions,
relative to the revenue, as may be referred to them
by the House; to inquire into the state of the
public debt, of the revenue, and of the expendi-
tures ; and to report, from time to time, their opin-
ion thereon.
Ordered, That Mr. Randolph, Mr. Griswold,
Mr. Israel Smith, Mr. Bayard, Mr. SMiLiE^Mr.
Read, Mr. Nicholson, Mr. Van Rensselaer.
and Mr. Dickson, be appointed a committee, pur-
suant to the said resolution.
Resolved, That Mr. Cutts and Mr. Abram
Trigg be appointed a Committee for Enrolled
Bills, on the part of this House, jointly, with such
committee as shall be appointed for that purpose
on the part of the Senate.
A message from the Senate informed the House
that the Senate have agreed to a resolution that
two Chaplains, of different denominations, be ap-
pointed to Congress, one by each House, to inter-
change weekly; to which they desire the concur-
rence of this House: Whereupon,
Resolved, That this House doth concur with
the Senate in the said resolution.
On motion, it was
Resolved. That a committee be appointed to in-
quire whetner any, and, if any, what, alterations
or amendments may be necessary in the existing
government and laws of the District of Columbia ;
313
HISTORY OF CONGRESS.
314
December. 1801.
Accounts of T. Pickering,
H. OF R.
and that they be authorized to report by bill or
otherwise.
Ordered^ ThA Mr. Spriog, Mr. Brent, Mr.
Foster, Mr. Sumter, Mr. Plater, Mr. Strat-
TON, and Mr. Bacon, be appointed a committee,
pursuant to the said resolution.
Ordered^ That the credentials of N a rs worthy
Hunter^ who has appeared as a Delegate from
the Territory of the United States known by the
name of the Mississinpi Territory, be referred to
the Committee of Elections ; and that they be
directed to report whether the Territory is enti-
tled to elect a Delegate, who may have a seat in
this House.
The Speaker laid before the House a letter
from Thomas Claxton, the Doorkeeper, stating
that, in the execution of the various duties at-
tached to his station, certain expenditures will be
requisite, and further assistance necessary to be
allowed by the House ; which was read, and re-
ferred to Mr. Elmendorf, Mr. Gray, and Mr:
Bacon.
A petition of James McCashen,and others, was
presented to the House and read, stating that they
are subjected to great and heavy losses and dis-
tresses by the operation of an act, passed at the
last session of Congress, giving to persons claim-
ingj by purchase from John Symmes and his as-
sociates, a right of pre-emption in certain lands
purchased of the United States, to the prejudice
of Your petitioners' claims as original purchasers
under said Symmes, and praying for relief. — Re-
ferred to Mr. Davis, Mr. Hoge, and Mr. Fear-
ing; that they do examine the matter thereof, and
report the same, with their opinion thereupon, to
the House.
A Message was received from the Presiuent
OF the United States, by Mr. Lewis, his Sec-
retary, as follows :
Mr. Spbakes : I am directed by the President of the
United States to hand you a Letter, accompanying a
Communication, in writing, from the President to the
two Houses of Congress.
The said Letter and Communication were read.
[ Vide Senate Proceedings of this date, antey page
11.]
Ordered, That the said Letter and Communi-
cation be committed to the Committee of the
Whole House on the state of the Union.
ACCOUNTS OF T. PICKERING.
Mr. Nicholson moved that the House do come
to the following resolution:
Resolved, That the Secretary of the Treasury be di-
rected to lay before this House an account of all
moneys received by Timothy Pickering, Esq., former
Secretary uf State, together with Mr. Pickering's ac-
count of disbursements, and his vouchers for the same.
Mr. Nicholson observed, that he conceived
this measure necessary on account of the clamor
that had been raised, the publications of various
neiv^spapers; and the agitation of the public. He
considered it a duty due to his constituents to
give them complete satisfaction on this subject.
Mr. N. was one of the committee appointed to ex-
amine the accounts of the Treasurer the last ses-
sion. He did not think that committee authorized
to attend to any other than the Treasurer's ac-
counts, and the mode of keeping them. He hoped,
for the reasons before mentioned, and for the en-
tire satisfaction of ail, that the resolution would
be adopted.
Mr. Griswold rose. — He observed that he also
was a member of that committee ; that he differed
much from the gentleman last up, relative to the
powers of that committeee. He believed that
committee were authorized to examine all the
accounts of the Treasury ; that Mr. Pickering's
accounts were examined, and that the vouchers
were also examined, a certain bundle of papers
excepted, which the committee were informed
were vouchers on a particular account, but which
the committee thought it too tedious to critically
investigate as they were knowing to the appropria-
tions. Mr. O. thought the argument of present
alarm or public agitation futile, as that clamor
had existed previous to the investigation of the
committee a year since; that it was needless to
investigate those accounts again and again ; it
would employ their whole time. But he wished
particularly to know the gentleman's object;
something appeared to be in view which he could
not understand ; he wished the gentlemarl fully
to explain himself. Mr. G. conceived that it did
not come within the precinct of the duties of the
House to settle the accounts of Mr. Pickering ;
that House was not a board for that purpose. Mr.
G. had no objection, other than on the grounds of
inconsistency, to the resolution.
Mr. Nicholson said, the gentleman and him-
self differed as to the DOwer of the committee
that had attended to tn<e investigation of the
Treasury accounts; he believed they were not
authorized to enter into an inquiry whether all
the moneys received by Mr. Pickering were prop-
erly appropriated ; this was his object. He had
been informed, of late, that Mr. Picxering had. in
some instances, appropriated more money than he
was allowed, and had sometimes appropriated
money to purposes, though public purposes, other-
wise than ordered ; it was his wish that the House
should adopt some regulations in these matters,
not having appropriations discretionary with offi-
cers, and the better to enable the Comptroller to
settle his accounts. He was sensible of the im-
possibility of their making a thorough investiga-
tion, and that they must trust to the Treasurv for
information ; but that when the attention or the
people was called to particular characters in this
manner, it was their duty to satisfy them ; he did
not wish to single out Mr. Pickerinfi^ alone ; he
wished equal reference to others. The proposed
resolution was not on account of any doubts in
his mind; he did not entertain the least suspicion
that Mr. Pickering had ever appropriated to his
own use, or defrauded the public of a single dol-
lar; he believed him to be a man of irreproach-
able honesty and integrity ; but the report of the
former committee did not say enough.
Mr. Griswold. — He presumed it very probable
that there had been occasionally excess of appro-
816
HISTORY OF CONGRESS.
316
H. OP R.
Proceedings,
December, 1801
. priations; every man acquainted with public busi-
ness kaew that the public service would have suf-
fered had not this been the case. Most members
knew how often this had happened, and how often
Congress had justified, and granted afterwards,
this excess of appropriations \ laws cannot always
touch contingencies. It had often been the case
in the office of the Secretary at War ; Congress
afterwards made up the expenditure, the excess
appearing fairly and necessarily applied; so it
may have been in the office of the Secretary of
State.
The resolution was {lostponed till Monday next,
and then the House adjourned.
Wednesday, December 9.
Another member. to wit: John Campbell, from
Maryland, appeareci, produced his credentials, was
qualified, and took his seat in the House.
A petition of Henry Mumbower and others was
presented to the House and read, praying a reim-
bursement of the fines and pensilties incurred by
the petitioners, for a supposed attempt to impede
the execution of the law laying a tax on lands and
dwelling houses within the United States, and for
which they were convicted and sentenced by the
circuit court of the United States for the district
of P^nsylrania. — R*eferred to Mr. Leib, Mr.
Campbell, and Mr. Johnson, to examine and re-
fort the same, with their opinion thereupon to the
louse.
The Speaker laid before the House a letter
from the Secretary of the Treasury, transmitting
an account of the receipts and expenditures of the
United States for the year 1800, together with a
letter from the Register of the Treasury, in rela-
tion thereto ; which were read, and ordered to be
referred to the Committee of Ways and Means.
Thursday, December 10.
Mr. Mitchill presented a petition of certain
aliens residing in New York and its vicinity,
stating the injuries they suffer from the naturali-
zation law, and praying the House to afford such
relief as they shall deem fit.
After some conversation as to the disposition
of the petition, it was agreed that it lie on the
table, until that part of the President's Message on
the same subject be taken up by the House.
A petition to the same effect was presented by
Mr. Mitchill from certain alien residents in the
county of Montgomery, State of New York.
Mr. Giles moved the reference of this petition
to the Committee of the Whole, to whom had
been referred the President's Message.
Mr. G. and Mr. Mitchill considered this mode
of disposition proper to be pursued in all cases
where abstract principles were to be settled. Such
was the present case. The facts were notorious
and indisputable.
Mr. Griswold advocated the reference of all
petitions to a select committee. In considering
them, facts might arise, which could only be elu-
cidated by a select committee.
Mr. Giles's motion was carried.
A petition of Sarah Fletcher and Jane Ingra-
ham, widows and relicts of Patrick Fletcher, Late
commander of the United Sta^bs' frigate Insur-
ffent, and of Joseph Ingraham, late a lieutenant oo
board Xhe United States' brisantine of war Pick-
ering, was presented to the House and read, pray-
ing that the petitioners may receive, for and during
their respective lives, an annuity equivalent to the
half pay of their husbands, respectively, in con*
sideration of their loss, in the capacities aforesaid,
with their vessels and crews, whilst in the public
service of the United States, some time in the
year 1800. — Referred to Mr. Ecstis, Mr. God-
DARD, Mr. Nicholson, Mr. Giles, and Mr. Stan-
ton ; that they do examine the matter thereof,
and report the same, with their opinion thereupon,
to the House.
Mr. Elmendorp, from the committee to whom
was referred, on the eighth instant, a letter from
Thomas CLAXTON,the Doorkeeper of this House,
relative to certain expenditures, and further as-
sistance necessary to be allowed for enabling him
to execute the duties of his station, made a report;
which was read and considered : Whereupon.
, Resolved, That Thomas Claxton be, and is
hereby, authorized to employ, under his imme-
diate direction, one additional assistant, two ser-
vants, and two horses, for the purpose of perform-
ing such services and duties as are usually re-
quired by the House of Representatives, during
the present session, and for tour days thereafter ;
and the sum of five dollars and seventy-five cents
per day be allowed to him for that purpose ; and
that he be paid therefor out of the fund appro-
priated for tne contingent expenses of the House.
A message from the Senate informed the House
that the Senate have proceeded to the appoint-
ment of a Chaplain to Congress, on their part, and
the Rev. Mr. Gantt has been duly elected.
On motion, it was
Resolved, That a committee be appointed to
inquire whether any, and what, amendments are
necessary to be made in the acts establishing a
post ofiice and post roads within the United States ;
and that the said committee have power to report
by bill or otherwise.
Ordered, That Mr. Southard, Mr. Archer.
Mr. New. Mr. Boude, Mr. Butler, Mr. Walkeb.
and Mr. Lemuel Williams, be appointed a com-
mittee, pursuant to the said resolution.
The House proceeded, by ballot, to the appoint-
ment of a Chaplain to Conj^ress, on the part of
this House ; and, upon examinins^ the ballots, the
majority of the rotes of the whole House was
found in favor of the Reverend William Park-
inson.
Friday, December 11.
Several other members, to wit: from New
Hampshire, Joseph Peirce ; from Massachusetts.
Pgleo Wads worth ; from Virginia, Thomas
Claiborne and John Clopton ; and, from North
Carolina, William H. Hill, appeared, produced
their credentials, were qualified, and took their
seats in the House.
317
HISTORY OF CONGRESS.
818
Decembbb, 1801.
Revenue Laws.
H. OF R.
Mr. MiLLEDGE, from the Committee of Elec-
tions, reported that the committee had, ia part,
examined the certificates and other credentials of
the members returned to serve in this House, and
had agreed upon a report ; which was read, and
ordered to lie on the taole.
The Speaker laid before the House a letter
from Samuel Meredith^ late Treasurer of the Uni-
ted States, accompanymg his general accounts of
the receipts and expenditures of public moneys,
from the first of October, one thousand eight hun-
dred, to the thirtieth of June, one thousand eight
hundred and one. inclusive ; also, his accounts of
receipts and expenditures for the Navy and War
Departments, commencing the first day of Octo*
ber, one thousand eight hundred, and ending the
thirtieth of Septeml^ry one thousand eight hun-
dred and one ; which was read* and referred to the
Committee of Ways and Means.
Mr. Nicholson observed that* during the last
session a committee had been appointed to inquire
into the exp^iencv of amendmg an act entitled
An act respecting lugitives from justice, and per-
sons escaping from tne service of their masters ;
but, from the lateness of the period when the com-
mittee was appointed, and from the i^ressure of
other business, the subjects, though important,
bad been neglected. He, therefore^ now moved
the appointment of a committee for the same
purpose.
The motion was agreed to, as follows :
Resolvedf That a committee be appointed to inquire
into the expediency of amending the act, entitled *< An
act respecting fugitives firom justice, and persons es-
caping firom the service of their masters ;" and that the
said oommittee be authorized to report by bill, or other-
wise.
Ordered, That Mr. Nicholson, Mr. GonoARn,
Mr. HoLLANo, Mr. John Smith, of Virginia, and
Mr. LowNOEs, be appointed a committee pursuant
to the said resolution.
REVENUE LAWS.
Mr. S. Smith, after a few introductory observa-
tions, moved that the Committee of Commerce
and Manufc^ctures be directed to inquire whether
any, and what alterations may be necessary in the
acts laying duties on goods, wares, and merchan-
dise^ imported into the United States.
Mr. Griswold thought that the subject, belong,
ing to the revenue, properly attached itself to the
Committee of Ways and Means. He contended
that any alteration whatever would either increase
or diminish the revenue, and therefore belonged
to the financial system, which the Committee of
Ways and Means especially had in c barge ; on
that account he moved its reference to that com-
mittee.
Mr. Smith contended that it was usual and ne-
cessary for the subject to be discussed by commer-
cial men, of whom alone the Committee of Com-
merce and Manufactures was composed. It was
desirable to consolidate all the revenue system as
much as possible into one law ; it was also de-
sirable to Know the precise state of our imports,
and of our progress in manufactures. By a refer-
ence to commercial men, the House, besides those,
might be acquainted with a very desirable object,
to wit: how far certain articles would bear addi-
tional duties, or how far others admitted a diminu-
tion, proportioned to the wants of the country.
Commercial men were practical men, and, there-
fore, without disparaging the merits or talents of
gentlemen composing the other committee, whose i
express appointment did not so pointedly relate to
commerce, but to revenue, he thought the origi-
nal motion ought to be carried.
Mr. Gribwold had no doubt, but that either
committee would do justice to the subject ; but it
was a usual reference for all «ubjects relating to
revenue. It certainly contemplated a total revis-
ion of that part of the revenue, and he again con-
tended that all matters relating to revenue ought
to ^o to the Committee of Ways and Means, for
which purpose alone that committee was formed.
He shoulcf not have risen, he said, but that he
did not see the chairman ot that committee in his
seat.
The Speaker said, that either reference was
p«rfec|ly in order ; and that, therefore, either mo-
tion would have been proper. The reference to
the Committee of Commerce and Manufactures,
at present^ had the preference, being first moved.
Forty-six rising m the afl&rraative, and being a
majority, the reference moved by Mr. Smith was
carried.
Monday, December 14.
Another member, to wit: Lewis R.Morris.
from the State of Vermont, appeared, -produced
his credentials, was qualified, ana took his seat in
the House.
A memorial of John Hobby, late Marshal of the
District of Maine, in the State of Massachusetts,
was presented to the House and read ; stating that
he is now, and has been for more than five months
past, confined in Portland jail, in said State, for
a debt due from the memorialist to the United
States, which be is unable to pay ; and praying
such relief in consideration of his past services,
advanced age, and injuries sustained in his health
by the imprisonment to which he has been sub-
ject, as to the wisdom of Congress shall seem
meet.— Referred to the Secretary of the Treas-
ury, to report his opinion thereupon to the House.
The Speaker laid before the House a letter
from the Secretary of the Treasury, accompanied
with a report and estimates of the sums necessary
to be appropriated for the service of the year one
thousand eight hundred and two; also, a state-
ment of the receipts and expenditures at the Treas-
ury of the United States, lor one year preceding
the first day of October, one thousand eight hun-
dred and one ; which were read, and ordered to.
be referred to the Committee of VVays and Means.
On motion, it was
Resolved, That a committee be appointed to inquire
into ^e expediency or inexpediency of giving further
time to persons entitled to military land warrants to ob-
tain and locate the same.
Rewhedf That a committee be appointed to report
319
HISTORY OF CONGRESS.
320
H. OP R.
Disbursement of Picblic Moneys,
December, 1801 .
what provision ought to be made, by law, to authorize
the Secretary of War to issue military land warrants ;
and that the committee also report, what provision
ought to be made, by law, to authorize the Secretary of
War to issue duplicates where satisfactory proof is
made that the originals have been lost, destroyed, or
obtained by firaud.
Ordered, That Mr. Davis, Mr. Jackson, Mr.
Tallmadqe, Mr. Dennis, and Mr. Fearing, be
appointed a committee, pursuant to the said reso-
lutions.
The Committee of Revisal and Unfinished Bu-
siness reported, in part, that they had examined
the Journals of the late House, and found in an
unfinished state sundry bills, reports, and petitions,
which they specify. The committee concluded
with a resolution that all petitions, &c., depend-
ing in the last House, be taken up at the instance
of a member, or on the application of the peti-
tioner.
Mr. Griswold moved that the Committee of
Claims be directed to inquire into the expediency
of allowing the refugees from Canada and Nova
Scotia farther time for exhibiting their claims for
lands under the act for their relief. — Agreed to,
40 to 33.
DISBURSEMENT OF PUBLIC MONEY.
• Mr. Nicholson called up the resolution, laid
by him on the table, respecting the expenditure
of public moneys by Timothy Pickering, Esq.,
late Secretary of State. Mr. N. observed, that
some ideas expressed bv a gentleman from Mas-
sachusetts, when this suoject was before the House,
had weight with him, and had induced him to
modify his motion. It had been very properly,
in his opinion, remarked, that such a motion should
not pomt at any particular officer, but that it
should be extendea to all officers who superin-
tended the disbursements of public money. He
had, therefore, prepared another resolution, which,
while it embraced his first object, would be seen
to be connected with other objects equally inter-
esting, as follows :
" Resolved, That a committee be appointed to inquire
and report, whether moneys drawn firom the Treasury
have been fiuthfuUy applied to the objects for which
they were appropriated, and whether the same ^ave
been regularly accounted for ; and to report, likewise,
whether any further arrangements are necessary to
promote economy, enforce adherence to legislative re-
strictions, and secure the accountability of persons en-
trusted with the public money."
Mr. Batard declared his high pleasure at the
liberality and candor which characterized the mo-
ver of the resolution ; which had been manifested
on the institution of it, as well as in the modifia-
tion now offered. The motion, as it now stood,
however, was not confined to one department, but
embraced the whole. He thought it would be
best to confine it to one department; but to give
it a more retrospective effect, and to apply it not to
Mr. Pickering only, but also to Secretaries of State
that preceded him. He believed that, on investi-
fation, it would be found that moneys disbursed
ad not been expended conformably to the strict
letter of appropriations. But such a deviation was
the result of necessity. The public service for-
bade delaying certain measures, for the execution
of which competent appropriations had not been
made, to the next session of Congress. He be-
lieved that the same thing had occurred in other
departments. It had been the custom, in cases
where money was wanted for one, though appro-
priated to another, under the same department, to
take it from the latter and to apply it to the for-
mer. This was illegal ; but its being the custom
palliates it.
Mr. B. could not but approbate the conduct of
the gentleman from Maryland. He had, honora-
bly to himself and honorably to Mr. Pickering,
declared his conviction that Mr. Pickering had
acted like a man of honor and integrity ; and that
though he had sanctioned departures from the let-
ter 0? appropriations, yet, that this had been only
as he had termed it a technical misapplication of
money. For this inquiry, Mr. B. thought there
was sufficient cause. The public mind had been
agitated. The vilest slanders had been circulated.
It had been averred, not merely that Mr. Picker-
ing had violated the appropriation of public mo-
neys, but that he had applied them to his own
personal nurposes. But, after the praiseworthy
candor otthe gentleman, he trusted that all false
impressions would b^ removed; and that it would
be found that all the noise made, arose from inat-
tention to prescribed appropriations of money;
and that the same inattention applied to the other
departments.
Mr. B. desired to know the extent of the mo-
tion. If confined to the Department of State, em-
bracing all the Secretaries, he would be in Uxor
of it.
Mr. Nicholson would answer the gentleman
from Delaware, that it was his intention that the
motion should apply, as far as it affected the De-
partment of State, not only to Mr. Pickering, but
to his predecessors also ; and he had so framed it
as to include the Departments of War and the
Navy, in case the committee saw fit so far to ex-
tend their inquiries. The accounts of the De-
partment of State could be easily examined, while
those of the War and Navy Departments, from the
want of specific appropriations, precluded so pre-
cise an investigation. But the committee may
examine the subject, and the terms of the resolu-
tion gave them authority to pursue their inquiries,
if they thought fit, into those departments. They
may also go back, if necessary. For himself, Mr.
N. had no objection to this. Not that he thought
such a measure necessary, as it was well known
that the accounts of Mr. Pickering's predecessor
had been settled, and that a suit, which had arisen
from such settlement, was now depending. He
bad plainly answered the inquiries of the gentle-
man, and he hoped satisfactorily.
Mr. Giles observed, that he had always been
in favor of giving the people the fullest informa-
tion on the expenditures of public money. It
would be recollected that he was among the first
to institute an inquiry into the disbursements of
the Treasury under this Government. It was
321
HISTORY OF CONGEESS.
322
December, 1801.
Disbursement of Public Moneys.
H. OP R.
true that his efforts were attended with but little
success; they had been treated with but little re-
spect; and he might, perhaps,.add that they had
been treated with some share of disrespect. He
rejoiced, however, in the change which had ta-
ken place, and he expected that this House would
hereafter be as jealous of public disbursements as
he had long been.
The disbursement of public treasures excited,
and deservedly excited^ the national sensibility.
The people felt it as all important. He was, there-
fore, well pleased with the resolution, whose effect
would be to inquire into the conduct of all pres-
ent and past Secretaries. As the whole would
be included, it would exclude all party considera-
tion.
He hoped that they were now assembled to le-
gislate for the public sood -, and that^ standing on
the ground of truth, all calumny, let it come from
whatever quarter, would be dismissed. He felt
no ill will to any public officer, but he thought
the official conduct of all of them should be tested
by facts. He believed there had existed practices
dangerous to our happiness, and his remarks were
directed against those practices, not against any
Particular persons. If inconvenience and injury
ad sprung from the practices, we should find a
remedy for them.
Mr. G. hoped that, at the commencement of a
new Admimstration, all the doors of information
would be thrown ooen, that the people might be
well informed, and oe able to repel all calumnies
that were propagated, and know where real blame
attached.
Mr. G. said, he wished to know when the prac-
tice alluded to commenced. The House sat here
as a board of inquiry into the transactions of the
Government, and without respect to any particu-
lar man; it was their duty to inquiry into the
conduct of all. He, therefore, hoped not only
that this motion would pass, but that something
similar to it would be incorporated in the stand-
ing rules of the House, whereby the act of inauirj
would be general and a matter of course. If this
should be done, the measures of all the depart-
ments would pass in review every session, and
checks would be sufficiently multiplied to satisfy
the public mind.
Mr. Mitch ILL professed himself well pleased
with the substitute offered to the original motion,
whicii had, in some measure, excited his surprise.
When an individual of great probity, and who
had long served his country, was pointed at by
the original motion, he coula not avoid a painful
sensation. The mover had wisely resolved, un-
der the influence of such feeling, to modify his
motion, and to make it general, instead of partic-
ular. Mr. M. did not know how business had
been transacted in the departments, but he did
know that suspicions and slanders had been lev-
elled at our public officers. It was in the power
of the House, if they were unfounded, to disperse
them. The House might be considered as the
protector of the innocent.
Mr. M. did not believe the gentleman pointed
at had been guilty of corruption. He believed
7th Con .—11
what was so called, was an allowable departure
from the strict letter of the law, in order to pro-
mote the public good.
Mr. Bacon said, if he understood the motion, it
had nothing to do with the conduct of Mr. Pick-
ering— it not only contained no particular re-
ference to him, but avoided all personal refer-
ence to any of the officers. It applied solely to
the expenditure of public money. He, therefore,
saw no reason for bringing him or any other per-
son into view. When an inquiry had been made,
it would be time enough to approve or condemn
the conduct of public agents.
Mr. Bayard perceived no difference of opinion
amone gentlemen. All expected in the abstract,
as well as in the present case, that the conddct oi
public officers should be examined, and the result
laid before the House. He, however, did not think
the statement made by the gentleman from Vir-
ginia perfectly correct when he told the House
that his endeavors to obtain an inquiry into the
state of the Treasury had been treated by a late
House with disrespect.
Mr. B. said, his own information might be in-
correct, as it was taken principally from the prints
of the day ; but he would say, that since he had
been a member of that House, there had been na
case, where an investigation was asked, in which
a majority of the House had not sanctioned it
without hesitation.
He recollected an investigation made at the in-
stance of the gentleman from Virginia, into the
conduct of a ^rmer Secretary of the Treasury ;
that the investigation did proceed ; and that tne
very gentleman had a full opportunity of satisfy-
ing his own mind on the corcectness of the con-
duct of that officer. If there had been a case in
which a majority of that House had opposed an
investigation, it was not within his knowledge.
For his own part, he never had opposed, nor never
would, the freest investigation of the measures of
public agents, whatever Administration had the
Government in its hands.
With respect to the contemplated motion an-
nounced by the gentleman from Virginia, Mr. B.
did not know but it might produce tne most seri-
ous inconveniences, if not injuries, to the Govern-
ment. An imperious and irresistible necessity
might force your officers to go beyond the lidits
of an appropriation. Appropriations that are
made are usually prospective. They are necessa-
rily, in many cases, imperfect. Tney may, of
course, either exceed or fall short of the object for
which they are intended ; and you must, to make ^
good the deficiency of one, draw upon the excess
of another. This procedure had been introduced,
and had been formed, he believed, into a general
Eractice. He did not know that any department
ad exceeded its aggregate appropriation ; but the
redundancy of one appropriation had been made
use of to supply the deficiency of another, under
the same department. He did not know that any
detriment would flow from such procedure. The
officer who made the deviation, knew that he did
it on his own responsibility, and that his conduct
would be strictly scrutinized. From this view of
323
HISTORY OF CONGRESS.
324
H. OP R.
Disbursement of Public Moneys,
Decembeb, 1801.
the subject he did not dread the incoDvenieDce
suggested.
Mr. B. said, he would illustrate his ideas by
stating what had come to his particukr know-
ledge. According to one of the stipulations made
between the United States and Spain, a bounda-
ry line was to be run between the United States
and the possessions of Spain, for which $60,000
were appropriated. The act of running the line
was in execution, unfinished, and our commis-
sioners in the wilderness, when the appropriation
run out; and this was during the recess of Con-
gress. What was to be done ? Were we to dis-
appoint a foreign Government and stop the whole
business? No. There beings money appropria-
ted to the department for other purposes, more
than was required, the Secretary of State applied
it to this purpose.
Mr. B. thought it proper, on this occasion, to
state that Mr. Pickering had clearly shown that
every dollar of public money that had gone
through his hands had been applied to the public
service. This information he had from the most
authentic source ; nor should he here state it were
it not entitled to the fullest confidence.
Mr. B. concluded by observing that, in his
opinion, the resolution was too broad ; it applied
to all moneys expended, no matter by whom;
it was imperative upon the committee to' make
the most extensive inquiry. To obviate this difiBi-
culty, he would move, if agreeable to the mover
of the original resolution, to confine it to the
Heads of the Departments.
Mr. Bacon thought the resolution stood very
well. Instances would doubtless occur under every
Government that would justify a deviation from
the rigid prescription of law. But he was of
opinion that it would be time enough to make
such remarks as had fallen from gentlemen, when
such ipstances are satisfactorily shown to have
occurred.
Mr. Giles was happy in the calm spirit with
which the session commenced, and he hoped the
same spirit would attend the deliberations of the
whole session. He must, however, be permitted
to say that the gentleman from Delaware had
been inattentive to the course of events, or he
would have been more correct in his statement of
the circumstances which had attended the case to
which he (Mr. G.) alluded.
There was no doubt that after great efibrts made
by him to obtain an investigation of the official
conduct of the Secretary of the Treasury, an in-
* quiry had been made ; but the result of that in-
quiry, as submitted, was far from being satisfac-
tory, and did not embrace many of the material
points. The gentleman was incorrect in another
statement. lie had not, as declared by the gen-
tleman, yielded his assent to the correctness of
conduct of the Secretary of the Treasury. The
gentleman, doubtless, haa the information he gave
the House from certain newspapers that he and
many other gentlemen were in tne habit of read-
ing.
But such authority did not authenticate the
information. The fact was otherwise. The in-
quiry made had produced different convictions od
his mind. From the inquiry then made, which,
in its review the- House may deem it proper to
avail itself of, it would be found that the gentle-
man then at the head of the Treasury, had been
employed for three years in drawing money from
Holland, and that on this was founded the Bank
of the United States. Mr. G. thought it barely
necessary to make this explanation. He was sor-
ry for the necessity of making it on this occasion,
which he should not have done but that it was
extorted from him by the incorrect remarks of the
gentleman from Delaware, which rendered it ne-
cessary for him further to say, that he never
had been, and never could be, satisfied with the
then Secretary for breaking down the great bar-
rier of appropriations.
As to the imperious circumstances, mentioned
by gentlemen, which compelled a violation of ap-
propriations, he agreed in the necessity which
might sometimes exist; but when such a viola-
tion occurred, the causes of it ou^ht to be truly
imperious, and ought to be stated immediately to
Congress, who was the only judge of the proprie-
ty of the measure, and not the man who had
usurped their decision.
But the deviations are not new; they appeared
to be of long standing, from which, in his opinion,
great mischief and no good had resulted. He
however, did not wish to enter into a discussion
until a report was made. He forbore, therefore,
making any further remarks.
Mr. LowNOEs hoped the inquiry would take
place ; but thought tne terms of the resolution too
comprehensive. It does not say where the exam-
ination shall begin or where terminate. The
committee may examine into the conduct of one
officer, or every officer. He believed it to be the
practice of all deliberative bodies to prescribe de-
finite duties to its committees. He, therefore,
hoped that the House would limit the report to
certain points, that a definite duty may be requir-
ed, and a definite report made. T]ie task, unless
defined, would be herculea^n.
Mr. Claiborne was surprised at the expression
of any sensibility for Mr. Pickering, or any other
man ; when he read that part of the Constitution
that directed that all moneys should be expended
under appropriations made by law, and heard gen-
tlemen justify departures from this Constitution-
al injunction, he was truly astonished. If Mr.
Pickering had departed from the directions of the
law. to say so was no calumny. The committee
proposed to be formed will inquire into all cir-
cumstances, and the public ofiicers will be ap-
plauded or virtually censured. We are accounta-
ble to the people for the expenditure of their mo-
ney, and it is proper that our public officers should
be accountable to us.
The question was then taken on Mr. Nichol-
son's motion, without modification, and carried
without a division, and a committee of seven mem-
bers appointed, viz:
Mr. Nicholson, Mr. Griswold, Mr. Giles,
Mr. Hastings, Mr. Jones, Mr. Batard, and Mr.
Elmendorf.
325
HISTORY OF CONGRESS.
326
December, 1801.
President's Message,
H. OP R.
PRESIDENT'S MESSAGE.
The Hoase, according to the standing order of
the day, resolved itself into a Committee of the
whole House on the state of the Union, the Mes-
sage of the President heing under consideration.
Mr. S. Smith observed that, among other ob-
jects to which the President had attracted the at-
tention of the House, was our commercial situa-
tion. We were informed that the United States
were at peace with all nations, and that peace had
taken place among the Powers of Europe. It be-
came Congress to direct its attention to conse-
quences that mi^ht proceed from such a state of
Oiings ', and particularly to the injuries that mi£;ht
attach to our carrying trade. It was known that
under the British Treaty^ Great Britain, going
perhaps beyond the meaning of the treaty, had
imposed heavy countervailing duties on our goods,
and that certain acts of France had the same ef-
fects, whereby many of our most valuable exports
would cease to be carried in our own bottoms.
Early under the present Government it had been
deemed wise to lay discriminating duties, which
had tended greatly to assist our carrying trade.
Our capital had greatly increased, and if foreign
nations restricted our trade by unfair regulations,
it became us to adopt counteracting measures;
and this could now be done with the more safety
and effect from the force of our capital. He, there-
fore, mored the following resolution :
** Resohfedf That so much of the several acts imposing
duties on the tonnage of ships and vessels, and on
goods, wares, and merchandise, imported into the Uni-
ted States, as imposes a discriminating duty of tonnage
between foreign vessels and vessels of the United
States, and between goods imported into the United
States in foreign vessels and vessels of the United
States, ought to be repealed ; such repeal to take effect
whenever the President shall be informed that the dis-
criminating duties of foreign nations, so far as they op-
erate to the disadvantage of the commerce of the Uni-
ted States, shall have been abolished."
Ordered^ To lie on the table.
Mr. Giles. — Among the various topics of the
Message is that in relation to the Census. It is
important that Congress should be early occupied
in deciding the ratio of representation, as many
of the State Legisleturea are now in session, aod
will be specially convened, if they shall rise before
Congress shall pass a law upon the subject. He,
therefore, moved the following resolution :
"Resohedf That the apportionment of Representatives
amongst the several States, according to Uie second enu-
meration of the people, ought to be in a ratio of one
Representative for every thirty-three thousand persons
in each State.'*
On which the question was taken, and the mo-
tion carried without a division.
Mr. S. Smith said, another important member
of the President's Message respected our situation
with the Barbary Powers. It became Congress
immediately to come to a decision that would en-
able the President more efficiently to protect our
trade. He, therefore, moved the following :
" Reaohedy That it is expedient that the President be |
authorized by law, further and more effectually to pro-
tect the commerce of the United States against the
Barbary Powers."
Mr, Nicholson said, he did not like the reso-
lution, as it had reference to a point with which
we were unacquainted. The President had in-
formed us that he bad sent a squadron into the
Mediterranean, It may have been a wise act, but
he did not wish the House to commit itself until
fully informed. He moved, with this view, to strike
out the words "further and more effectually."
Mr. Giles proposed that the motion lie on the
table until the documents on this subject were
printed ; which was agreed to.
Mr. MiTCBiLL alluded to his bavin? presented
two petitions from aliens in New York, and then
moved the following:
*^ Resohfed, That the laws respecting naturalization
ought to be revised."
Mr. Giles thought the motion ought to be so
drawn as to bring the principle before the House,
for which purpose he moved to add ** or amended."
Agreed to.
So the motion, as amended, was carried.
The Committee then rose, and reported the two
resolutions agreed to.
Tuesday, December 15.
A memorial of William Kilty, chief judge of
the circuit court of the District of Columnia, was
presented to the House and read, stating that by
the last section of an act of the last session of
Congress for altering the time and places of hold-
ing certain courts therein mentioned, it has been
made the duty of the memorialist to hold the
district courts of the United States in and for the
District of Potomac, in virtue of his office, under
a prior act of Congress concerning the District of
Columbia; and praying an increase of the com-
pensation allowed him by law, in consideration of
the additional labor and inconvenience to which
he is thereby subjected. — Referred to Committee
of Claims.
The House proceeded to consider the resolu-
tions reported yesterday from the Committee of
the Whole on the state of the Union : Where-
upon, the first resolution being again read, in the
words following, to wit:
" Resolved, That the apportionment of Representatives
amongst the several States, according to the seconii
enumeration of the people, ought to be in the ratio of
one Representative for every tlurty-three thousand per-
sons in each State."
Ordered, That the consideration of the said
first resolution be postponed until to-morrow.
The second resolution being again read, was,
on the question put thereupon, agreed to by the
House, as follows:
Resolved^ That the laws respecting naturaliza-
tion ought to be revised and amended.
Ordered^ That a bill or bills be brought in, pur-
suant to the said resolution; and that Mr. Mitch-
ill, Mr. GonuARU, Mr. Smilie, Mr. Thompson.
Mr. Lewis R. Morris, Mr. Wauswortb, and
Mr.«STANPORD, do prepare and bring in the same,
827
HISTORY OF CONGRESS.
328
H. OF R.
Barhary Potoei's.
December, 1801.
Ordered, That it be an instruction to the com-
mittee to whom it was referred to report by bill,
or otherwise, whether any, and, if any, what alter-
ations or amendments are necessary in the act-
concerning post, offices and post roads, that they
make provision for extending the privilege of
fraaking to the Attorney General of the United
States.
BARBARY POWERS.
The House resolved itself. into a Committee of
the Whole on the State of the Union, the follow-
ing resolution being under consideration:
" Resolved, That it is expedient that the President
be authorized by law, further and more effectually to
protect the commerce of the United States against the
Barbaiy Powers."
Mr. Nicholson said, that when this resolution
was yesterday laid on the table, he had moved, for
reasons that he had assigned, to strike out the
words " further and more." He was, on reflection,
more and more persuaded of the accuracy of his
objections to the unqualified terms of the original
motion. If we adopt it, we pledge ourselves to
increase the naval force at present at the disposi-
tion of the President. But if his modification
were agreed to, every gentleman would remain at
liberty to put his own construction on the words
" eflFectual force." Uninformed as we were as to
the necessity of increasing the force, it would be
highly improper to commit ourselves by any pre-
cipitate decision. He, therefore, moved to strike
out the words " further and more."
Mr. Giles opposed the striking out the words,
'which, in his opinion, did not relate to the quan-
tum of force placed under Executive disposition,
but to the measures proposed to be taken by the
Executive. He should vote for the motion una-
mended, though he had been, and still was^ as
averse as any gentleman in that House to an im-
proper augmentation of the Army or Navy. With
respect to the Navy, he was friendly to it as it
now stood, or to an augmentation of it to meet
any particular emergency.
Mr. S. Smith said, that as he understood the
resolution, it went not to pledge any man to aug-
ment the Navy, but to authorize the President,
with the present force, to take measures for the
defence of our trade. We were at war with
Tripoli. Against that Power, therefore, the Pres-
ident felt himself at liberty to act efficiently. But
gentlemen should advert to our situation with re-
gard to Algiers and Tunis. Those Powers may
become hostile. They may become so in the re-
cess of Congress. It may be necessary without
delay to protect our trade against them. Will you
then confine the President, in relation to these
Powers, to a Peace Establishment? Certainly,
when these circumstances were duly weighed, no
gentleman will refuse the power which this reso-
lution is intended to confer.
Mr. Smilie was in favor of the amendment for
one reason. He was ready at all times to grant
commerce every necessary protection. But, by
adopting this resolution we pledge ourselves, with-
out inquiring into the necessity, to extend further
protection. No doubt further protection will be
required. But he thought it premature to make
any pledge until all the documents connected with
ihe subject were before the House.
Mr. MiTCHiLL suggested the propriety of
afnending the original resolution, by inserting
after the word " law," " if necessary." This would
render the resolution conditional. To the resolu-
tion he was a friend. For, when the aspect and
extent of the United States were considered, it
must be evident to every man that we were a com-
mercial people. The bulk and extensiveness of
our produce required vessels to carry it to foreign
countries. The carriage required protection. The
Government must of course give protection. With
respect to the Mediterranean expedition, no plan
under the Government liad been better devised ;
and he had no hesitation to say that if the Medi-
terranean trade required further protection, he
would be for making further appropriations or the
public moneys.
Mr. Nicholson said he could not agree to the
suggestion of the gentleman from New York, as
by adopting it we should do nothing. How does
the matter now stand? Congress has pat into
the hands of the President six frigates, which he
had used for the public service in the Mediterra-
nean. This was not a fit time to express his
opinion on the propriety of the measures of the
Executive. But when a ISt occasion did offer, he
would have no hesitation to say the President had
done right.
To return to the point — the President had now
six frigates. If we agree to the resolution, do we
not pledge ourselves to increase this force ?
One squadron had been sent to the Mediterra-
nean ; another was in operation to go there^ he
understood. This was all right. But there fol-
lowed no necessity from these circumstances to
pledge ourselves to increase the force.
We were not even acquainted with the senti-
ments of the President on this point. His com-
munications did not inform us that he desired a
larger force. If he did desire it, he would say
so. He had, on the contrary, recommended a re*
duction of the Army and Navy ; and to desire an
augmentation of the latter, would be, in the same
breath, to say one thing and another.
Mr. EusTis. — The President, in his communi-
cations, has informed us that he has hitherto acted
on the defensive. The simple question now is,
whether he shall be empowered to take offensive
steps. This has no relation, therefore, to an in-
crease of the force, nor shall we, by adopting it,
pledge ourselves to such effect.
Mr. Giles. was happy that the discussion was
one more of words than of principles. He per-
fectly coincided with the gentleman from Mary-
land, who had moved the amendment, in his gen-
eral sentiments. It would be wrong in this House
prematurely to pledge itself for an increase of
naval force. But the words of the resolution do
not relate to the quantum of force, but entirely to
the measures to be taken with any force. Wnen
the President is authorized further and more ef-
fectually to protect our trade, it was not said that
329
HISTORY OF CONGRESS.
330
December, 1801.
Discriminating Duties.
H. OP R.
we will sire him four or six additional frigates ;
but merely that he is to have means, more or less,
which shall be adequate to make offensive oper-
ations against those who shall make offensive oper-
ations against us.
It was well understood that he was for keeping
the Navy within proper bounds; but if ever there
was a case where it was required, this was the
case ; and he acknowledged that he was for em-
powering the President to authorize, not merely a
dismantlement of a vessel, but her capture.
Mr. S. Smith said it was true that six frigates
had been given to the President ; but it was also
true that, when given, they were contemplated
chiefly as a nursery for our seamen, in which
view they were directed to be only two-thirds
manned. Would gentlemen contend that it was
fit they should go out in this insufficient state ?
By the prescriptions of the law, the President
deemed himselt bound. Already the whole num-
ber of seamen authorized by law are employed on
board four frigates ; and for the want of hands
the second squadron cannot be fitted out. The
time of the first would expire in one year from
their departure. It was, therefore, absolutely ne-
cessary that there should be more seamen.
The question was then taken on Mr. Nichol-
son's amendment, and lost.
When the original motion of Mr. SMitB was
carried.
Ordered, That a bill or bills be brought in, pur-
suant to the said resolution ; and that Mr. Eustis,
Mr. Samuel Smith, Mr. Dana, Mr. Mitchill,
and Mr. Jones, do prepare and bring in the same.
DISCRIMINATING DUTIES.
The following motion, made by Mr. S. Smith,
was then taken up, viz :
Resolved, That so much of the several acts imposing
duties on the tonnage of ships and vessels, and on
goods, wares, and merchandise, imported into the Uni-
ted States, as imposes a discriminating duty of tonnage
between foreign vessels and vessels of the United States,
and between goods imported i^to the United States in
foreign vessels and vessels of the United States, ought
to be repealed ; such repeal to take effect whenever the
President shall be informed that the discriminating du-
ties of foreign nations, so fiir as they operate to the
disadvantage of the commerce of the United States,
shall have been abolished.
Mr. Griswolu hoped the gentleman who had
made the motion betbre the committee, would as-
sign the grounds on which it was made. The
acts imposing discriminating duties had long ex-
iatedj with great and ^ood effect to our commer-
cial interests. He wished to know what effects
would flow from a revocation of those restrict-
ions, and whether the proposed measure would
not operate to the prejudice of the United States.
In its effects, the Eastern States would be partic-
ularly interested, and the more especially at this
period when, from the consequences likely to en-
sue from peace, our ships may be thrown out of
employment.
Mr. S. Smith assured the gentleman from Con-
necticut that if the measure he proposed had, in
his opinion, the least tendency to injure the com-
merce of the country, he should not have advoca-
ted it, as well from a regard to the deep stake he
himself held, as from a regard to the interests of
his constituents. The system of discriminating
duties was a wise one in the early exisstence of
the Government ; our own shipping was then im-
equal to the carrying of our produce. The dis-
crimination operated as a charm in producing a
rapid extension of shipping beyond the most san-
guine expectation.
Our trade remained in this situation until the
formation of the British Treaty. By that instru-
ment Great Britain was permitted to lay counter-
vailing duties, and these had been so imposed as,
in time of peace, to destroy the advantages at-
tached to our shipping over theirs. The effects
of this regulation were not immediately felt by
us. England was at war, and her freignts were
charged with war insurance, while ours were ex-
empt from such charges. Under these circum-
stances Enfftish bottoms could not enter into com-
petition with American, as the war insurances of
the former exceeded the inconveniences imposed
on the latter.
But peace being now restored, British ships
will have such an advantag;e over our ships, that
no man will ship tobacco, rice, or any other bulky
articles in American bottoms.
The effect of the countervailing duties of Eng-
land would be, that an American ship carrying
tobacco to England would pay eighteen shillings
sterling more on the hogshead than a British ship.
The usual freight of a hogshead was thirty-five
shillings. The difference, therefore, constituted
more tnan one-half.
Our situation was still worse in relation to
France. Of the restrictive acts of that Govern-
ment he could not give a precise idea i but he was
enabled to state, from a conversation had with a
gentleman from that country, high in office, that
so decided a preference was given to her over for-
eign bottoms, that a duty of ten li vres upon every
hundred weight of tobacco was laid on the latter^
which was equivalent to one hundred and twenty
livres on a hothead. He further understood that
six per cent, difference was imposed upon all other
articles. Peace being now restored, French ves-
sels will enter our ports, and become the carriers
to France of all our productions.
How were these effects, so alarming to our
trade, to be met 1 He replied that it was by taking
off our discriminating duties, and by placing our
merchants on equal terms with the merchants of
other nations.
And, sir, said Mr. S., have we not enterprise;
have we not capital, to hold an honorable, a suc-
cessful competition with the whole world ? No
man that knows the character of an American
merchant will doubt his ability to sustain such a
competition. The discriminating duties, once
useful, have ceased to be so. Our shipping has
increased, and we now want more to enter into
the ports of other nations, than that other nations
should enter into ours. We are willing to free
trade from its trammels. Let the trade be taken
331
HISTORY OF CONGRESS.
332
H. OP R.
Discriminating Duties,
December, 1801 .
by those who can carry the cheapebt. As a mer-
cnant, he was convinced that we /:ould carry
cheaper than any other nation. Our materials for
ship-building were at hand ; were cheaper, and
we could navigate our ships with fewer seamen
than any other nation.
The crisis required that we should take efficient
measures. Unless such measures be taken, our
commercial rivals will seize the sweets offered by
the present opportunity. It was true that in two
years the British Treaty] would expire. But he
understood that the British Ministry demurred to
the construction which considered that part of the
treaty under which countervailing duties were
imposed as expiring at that time.
Mr. Griswolo declared himself not satiiified
with the explanation made by the gentleman from
Maryland. It was certainly desirable to secure
the carrying of our bulky articles in our own
ships; and if the resolution would have this effect,
he should be decidedly for it. But he could not
discern such to be the effect. With regard to
England, it was true that tobacco was there charged
with a heavy duty ; but it was well known that
England consuitied but a small portion of what
was sent there — the rest was exported, and a
drawback of all duties allowed. As to tne great
mass of this article, therefore, it was not charged
any more than it would have been charged, had
it been directly exported to other countries.
For his part, he firmly believed^ that our carry-
ing trade would be effectually injured by alloW-
mg a free trade, whereby English ships would en-
ter our ports upon the same terms with our own
ships. It was well known, that before the war, the
tobacco imported into France had been farmed
out by the Government, and that it had been a
freat source of revenue. He was persuaded that
'ranee would not permit that article to be free.
From these and other considerations, Mr. G.
declared himself unprepared to decide upon a
question of so great importance. He was not pre-
pared to say what would be the effects of the
principle offered to the House, particularly as the
resolution does not say. in the event contempla-
ted, who shall decide, whether the President or
Congress.
Mr. S. Smith agreed with the fi^entleman from
Connecticut that the ^eat bulk oi our exports re-
quired an uncommonly large tonnage. But this
was an argument why we should secure this im-
portant object even if we lost the carriage of the
imports of other nations.
The gentleman had referred to the mass of
shipping in the Eastern States ; but he would in-
form the House that the Middle States were com-
petent to carrying their own produce. The gen-
tleman was mistaken in one of his deductions,
Tiz: that which respected our merchants deriving
no inconvenience irom English duties, as to the
quantity of tobacco exported from England on
which a drawback was allowed. He affirmed the
injury to be ffreat. For he would ask what
mercnant would like to export to England under
the uncertainty of his exporting his produce again
to other countries?
The gentleman was also mistaken in his alia-
sion to the farmers-general of France. They did
not monopolise that article. Every man had a
right to go there with tobacco. They were only
the venders of it. The gentleman was, therefore,
further mistaken, when he said our merchants
could not compete with French merchants.
Mr. S. was anxious that the earliest atten-
tion of Congress should be paid to this important
subject. France had not at present vessels to carry
our produce; availing ourselves of the situation
in which she was at present placed, we might by
this proposition gain her assent to the principles
of a tree trade, whereby a large share of our carry-
ing trade would be preserved, which otherwise
might be lost. Unless the opportunity that now
offered was immediately seized it might never
return.
Mr. Giles had at first thought the resolution a
very plain one; but he was almost induced to
think differently of it on findine^ gentlemen, wlio
were deeply interested in its efiects, holding con-
trary opinions. As to himself, Mr. G. said, he
did not feel a very lively interest on the subject.
The Southern States, in a pecuniary view, would
not be directly affected by it, as their interests
would not be materially promoted or impaired,
whether their productions were carrried by for*
eign merchants or by those of other States. ' Not
but that they would greatly prefer the latter mode.
From the remarks which had fallen from the
gentleman from Connecticut, he appeared entire-
ly to mistake the effects of the resolution.
Mr. G. believed the countervailing duty laid by
the British to be unauthorized by the treaty.
Taking our duties as the basis they had counter-
vailed them, and applying the countervailing
standard to separate and distinct articles, they
had imposed heavy duties upon them, below,
however, the maximum; giving up, as they said,
a right, and granting what they called a favor.
The result was the preference of British bottoms
over American, as stated by the gentleman from
Maryland.
Under the British Treaty, Britain was author-
ized to lay countervailing duties, but we were
prohibited from countervailing them. The only
question, then, was, whether we would patiently
submit to the present inequality, whereby nearly
the whole of our carrying trade might be de-
stroyed, or take our chance in an equal competi-
tion.
The ideas of the gentleman as to dispatch were
certainly correct. No time ought to be lost con-
sistently with deliberation. It was not, however,
the desire of Mr. G. to be precipitate. The mo-
ment was propitious; we ought to seize it. France
is now without shipping, but she has ^reat re-
sources, and may, unless we adopt decisive meas-
ures, buy from us those very vessels with which
we now carry our own produce, for the purpose of
carrying it for us. Hence, it was desirable that
an early decision should be had. If delayed till
the next session of Congress, or even for six
months, e^reat mischief might be done, as he pre-
sumed the laying up our merchant vessels for six
333
HISTORY OF CONGRESS.
334
December, 1801.
Batio of Representation,
H. OP R.
months will be nearly equivalent to a destruction
of them.
Mr. Griswold offered some additional remarks;
when, on motion of Mr. Ranoolph, the Commit-
tee rose, leaving the question undecided.
WfiDNEsnAY, December 16.
Another member, to wit: Benjamin Hcoer,
from South Carolina, appeared, produced his cre-
dentials, was qualified, and took his seat in the
House.
The Speaker laid before the House a letter
from the Secretary of State, accompanying an
annual return, ending the ninth instant, contain-
ing an abstract of all the retarns made to hini by
the Collectors for the different ports in the United
States, pursuant to ihe ^*Act for the relief and
protection of American seamen ;" also, extracts
irom the communications received from the agents
in foreign countries for the relief of American
seamen ; which were read, and ordered to lie on
the table.
The Committee of Elections made a further
report, stating certain members to be duly elected;
and further stated, that in consequence of the
erection of the Mississippi Territory, under the
ordinance of Congress, that Territory was enti-
tled to a Delegate when the Territory was enti-
tled to a Legislature. This period having arrived,
the committee report an opinion that Narswor-
THT Hunter be considered as a Delegate, with
the right of deliberating, but not of voting.
Mr. Milleooe could not agree to the report, as
by so doing he would vote for a measure that
would affect the sovereignty of Georgia. He,
therefore, moved a reference to a Committee oi
the Whole, in order to have the subject discussed.
Agreed to, and made the order for Friday.
RATIO OF REPRESENTATION.
The House, according to the order of the day,
proceeded to consider the first resolution reported
yesterday from the Committee of the whole
House on the state of the Union, in the words
following, to wit :
"Resolved, That the apportionment of Representatives
amongst the several States, according to the second
enumeration of the people, ought to be in a ratio of
one Representative for every thirty-three thousand per-
sons in each State.'*
Mr. Griswold remarked that the effect of
adopting this resolution would be an increase of
members in that House; that the number would
amount to nearly one hundred and fifty. He was
of opinion that the present House was sufficiently
numerous for every correct purpose, as well of
legislation, as for obtaining all desiraole informa-
tion from the people. Should an augmentation
be made, the consequences would be an increase
of expense, and business would inevitably be pro-
tracted. He moved, therefore, to strike out the
words " thirty-three," meaning, if they were strick-
en out, to propose the substitution of a larger
number.
On this motion a desultory debate ensued, in
which Messrs. Griswold. S. Smith, Nicholson,
Giles, Bayard, Alston, Elmer, Eustis, Sprigq,
and other gentlemen, took part.
Mr. Griswold stood alone in advocating an ap-
portionment of one member to every 40,000 per-
sons.
Messrs. Giles and Bayard were for one mem-
ber for every 30,000.
Messrs. S. Smith, Nicholson, and Eustis^
were for one member for 33^000.
.Mr. Allston was in favor of one representa>
tive for every 31,000.
The preferences avowed by the several speakers^
appeared to arise from the application of that,
divisor to the State from which each member
came, which left the least fraction.
9ome gentlemen, however, declared, and par-
ticularly Mr. Giles, that he bad made no calcula-
tion, and that his preference of the smallest ratio
proposed was the preference of principle.
Those in favor of a small ratio argued that,
though the expense attending the compensation of
the members might be somewhat increased ; yet,,
that it would-be trifling compared with the great
advantages that would result from a larger repre-
sentation; that such a representation would be
productive of true economy, as it would oppose
all extravagant expenditure of money ; that the
weight of expense incurred by the Government
did not arise from the expense of the civil list^
which formed' but a speck m the mass of expen-
diture. That it was important to this Govern-
ment to adopt those measures which would inf^ure
the respect and the confidence of the people ; that
this end would be best attained by eacn Repre*
sentative being familiarly acquainted with the in-
terests of his constituents ; and that this could
only be the case, when the number of his constit-
uents were limited within certain bounds. It was
true that it had been said that a body of more than
one hundred, even though it be composed of phi-
losopher^ was a mob ; but it was replied that the
long experience of this country had proved the
reverse, for that many of the State Legislatures
consisted of more members.
These ideas were but feebly opposed. The
diversity of opinion expressed, chiefly arose from
a division of the House on the ratios of thirty
thousand and thirty three-thousand. /The former
was advocated principally from a regard to Dela-
ware and Rhode Island, which, by its adoption,
would have each two Representatives, instead of
one, if a higher ratio were preferred.
During tne discussion, it was moved to strike
out the word '^ three;" leaving thirty thousand
as the ratio. This motion was lost — yeas 43,
nays 46.
Mr. Bayard then moved to strike out "thirty^
three," leaving the resolution blank, in order that
it might be filled up with such number as should
be agreeable to the House.
Tnis motion was opposed chiefly by Mr. Nich-
olson and Mr. Eustis, who Were of opinion that
the progressive increase of the members would be .
sufficiently large on the ratio of thirty-three thou-
sand persons to a member. They were also fur-
335
HISTORY OF CONGRESS.
H. OP R.
Public Printing-.
December, 1801.
thei in favor of this number as it left the fewest
fractions. The only two States much injured
by it wonld be Delaware and North Carolina;
whereas if the ratio was increased to thirty-five
thousand, New Jersey would have a fraction of
31,000; Delaware of 26,000 ; Maryland of 30,000;
Oeorgia of 23.0000; and Kentucky of 29.000.
On the question being taken for striking out
"thirty-three," there rose only thirty-one mem-
bers. It was therefore declared to be lost.
The question was then taken on the original
motion, and carried without a division, and a com-
mittee of three members appointed to bring in a
bill conformably thereto.
Thursday, December 17.
Another member, to wit: Daniel Heister,
from Maryland, appeared, produced his creden-
tials, was qualified, and took his seat.
The Speaker laid before the House a letter
from the Secretary of the Treasury, accompany-
ing two statements of the importations in Ameri-
can and foreign vessels, from the first day of Oc-
tober, one thousand seven hundred ana ninety-
eight, to the thirtieth day of September, one thou-
sand seven hundred and ninety-nine; also, similar
statements, from the first day of October, one
thousand seven hundred and ninety-nine, to the
thirtieth of September, one thousand eight hun-
dred, inclusive ; which were read and referred to
the Committee of Ways and Means.
The Speaker laid before the House a report
from the Commissioners* of the Sinking Fund,
enclosing a report made to them by the Secretary
of the Treasury, and a statement of the proceed-
ingi^ which have been authorized by the Board
since their report of the twenty-eighth of Novem-
ber, one thousand eisht hundred; which were
read, and referred to the Committee of Ways and
Means.
Mr. Randolph, a member of the Committee of
Ways and Means, informed the House that cer-
tain documents just directed to be printed, owing
to the state of the manufacture in this place, could
not be printed in less than twenty days; ciuring
which time the proceedings of the committee
would be arrested. He, therefore, moved a com-
mittee be appointed to devise a plan for expediting
the printing work of the House.
A committee of three, viz: Messrs. Randolph,
Nicholson, and L. R. Morris, was appointed.
It was moved that the House do go into a Com-
mittee of the Whole, on the Apportionment bill.
Mr. Bayard moved to postpone its consideration
till Monday.
After a short debate, the question of postpone-
ment was lost — yeas 39, nays 45.
The motion to ao into a Committee of the Whole
on the above bill was then withdrawn, under the
understanding: that it would be renewed to-mor-
row. The bill was ordered to be printed.
The committee, to whom was referred the res-
olution for a new apportionment of Representa-
tives anaong the several States, reported a bill,
which gives to the States the following'members,
viz: New Hampshire, five; Massachusetts, sev-
enteen ; Vermont, four ; Rhode Island, two ; Con-
necticut, seven; New York, seventeen; New Jer-
sey, six; Pennsylvania, eighteen ; Delaware, one;
Maryland, eight; Virginia, twenty-two; North
Carolina, twelve ; South Carolina, eight; Geor-
gia, four ; Kentucky, six ; Tennessee, three. The
bill was read a second time, and referred to a Com-
mittee of the Whole this day.
Friday, December 18.
Mr. Nicholson, from the committee appointed.
presented a bill to amend the act, entitled "An act
respecting fugitives from justice, and persons es-
caping from the service of their masters;" which
was read twice and committed to a Committee of
the whole House on Monday next.
PUBLIC PRINTING.
Mr. Randolph, chairman of the committee ap-
pointed to see what alterations were necessary to
expedite the printing business of the House, re-
ported that the committee thought it expedient to
request the Heads of the Departments to attend and
inspect the printing of all such documents, reports,
and statements, as are directed by law to be annu-
ally laid before the House ; and that it was neces-
sary that a printer to the House be appointed, who
should be responsible for the faithful aad prompt
execution of all business confided to him by order
of the House.
Mr. Griswold wished the report altered to a
resolution ; to the first part of it he should agree,
but doubted whether the latter part would be con-
curred in. He did not think it sufficient or expe-
dient to appoint but one; the business would re-
quire more, particularly at the close of the session.
He could see no reason for altering the mode in
which the printing business was now and bad
ever been done; it now lies with the Clerk, who is
empowered to employ as many persons as he plea-
ses or deems expedient. If sucn printer should be
appointed, he will become an officer of the House ;
he will not be responsible to the Speaker. We
have officers enough already ; it is needless to
multiply.
Mr. RANnoLPH said the committee had consid-
ered these objections ; but, he believed, sufficient
reasons might be offered to convince the House of
the expediency of this measure. If one be appoint-
ed, he will know his duty and be prepared ; be
will employ as many hands as he wishes. Ha<}
there been one appointed by the House last session,
he would have been on the spot now, fully prepar-
ed promptly tg execute the orders of the House;
nor should we have such delay as that by which
we are now unfortunately troubled.
Mr. Nicholson. — We have but few printers in
this vicinity, nor is it probable their number will
be soon increased. The printing for the House is
said to be worth $4,000 per annum: if one be ap-
pointed for that purpose he will have everytbine
m readiness, and be responsible for his faithful
duty.
Mr. S. Smith thought a printer thus appointed
337
HISTORY 01' CONGRESS.
338
December, 1801.
Apportionment Bill,
H. OP R
might perform a' considerable part of his duty pre-
vious to each session: to many documents he might
attend. Mr. S. wished such printer appointed as
a permanent officer.
Mr. Lowndes. — If he thought such officer ne-
cessary he should not oppose the measure, but at
present he did not think such appointment neces-
sary. He conceived the Clerk to be responsible to
the House ; that it was his duty to attend to the
printing ; that he could employ whom and as many
as he pleased. Whence, then^ the necessity of sucn
appointment 1 Besides, such printer will become
an officer of this House, must have a salary, and
will be called the printer of the House : and, if
printer of a paper, whatever sentiments might be
advanced in such paper would perhaps be consid-
ered as the sentiments of the House.
Mr. EusTis considered it altogether unneces-
sary, disadvantageous, and troublesome.
The first was carried : that relating to the ap-
pointment of a printer not carried ; about twenty
only rising in favour of it.
APPORTIONMENT BILL.
The House resolved itself into a Committee of
the Whole on the bill for the apportionment of
Representatives among the several States, accord-
ing to the second enumeration.
Mr. Macon (Speaker) moved to strike out
'^ thirty-three," the ratio fixed by the bill, for the
purpose of inserting ** thirty."
Mr. M. observed that it did not appear from the
different ideas expressed by different gentlemen,
ttiat any material inconvenience would result
from the increased number of members that would
be created by the ratio of thirty thousand being
adopted. Whereas on the ground of principle a
great benefit would flow from it. In nis opinion,
to secure the confidence of the people in the Gov-
ernment, it was essential to lessen the districts as
much as possible, that the elector might know
the elected. At present, particularly in North
Carolina, they were so large that a voter depend-
ed more upon the opinion of others than upon his
own information. The ratio of thirty thousand
Tvould not introduce into the House more than
one hundred and sixty members, which number
did not equal that of the members in sever^ of
the State Legislatures, of which no complaints
had been made, and from which no inconveni-
ence had arisen. He felt particularly for Dela-
ware, which would be severely affected by the
ratio in the bill.
Mr. Giles hoped the motion would obtain. As
far as respected the State of Virginia, he felt lit-
tle or no anxiety. But he, on general principles,
preferred the smallest ratio. It was an essential
principle of a Republican Government that the
people voting should know whom they vote for ;
that the elector should be well acquainted with
the elected. To insure this effect the districts
should be small. He was aware of the impossi-
bility of reaching this point precisely: but it was
our duty to approach it as nearly as possible.
Though, in relation to the situation of Delaware,
he did not subscribe fully to the ideas of some
gentlemen, as the case whs an extreme one, and
he knew the impropriety of relying upon such case,
as the reasoning from an extreme generally led to
an extreme, yet he thought the relative circum-
stances of Delaware and Virginia, as stated, to be
correct ; for it was a fact that Virginia, entitled to
twenty-two Representatives, was not so much
afiected by any given fraction, as Delaware, enti-
tled to but one Representative.
But the reply to the inequality of her repre-
sentation here is, that she has two Representatives
in the Senate; and it is inferred that she will
hence derive a larger weight in the Union. Such
was the theory of the thing. But what was the
result of experience? Mr. G. said, he had once
supposed that the small States would have an un-
due advantage over the large States. HJb opinionf
had since altered. All the small States were sur-
rounded and compressed by lar^ States, and de-
rived their political sympathies from them. It was
true, the small States had each two votes in the
Senate. Yet, what superior advantage have they
in the Grovernment generally ? He was, there-
fore, clearly of opinion that the claims of the
small States to the largest representation that
could be constitutionally given them, ought not to
be affected by their representation in the Senate.
The fact was that (his Hous^ was the basi? of con-
fidence in the Government. We had heard much
about an alarm, about disorganization, and the
disposition of large States to swallow up the
rignts of all the other States. He would ask,
whether the adoption of a large ratio would lessen
this clamor, promote the general confidence, and
increase the stability of the Government? *"
Mr. Jones hoped the amendment would pre-
vail. There was not a doubt but that the small
States would be materially affected by the ratio
in the bill. It was true, that, according to the
theory of our Government, the members of that
House did not represent tne States. But, what
was the fact ? In truth, our representation was
that of absolute localitv. Can I, said Mr. J., rep-
resent as effectually Massachusetts, or Vermont,
as Pennsylvania?
Mr. Van Ness declared himself to be uninflu-
enced by local considerations, or particular incon-
veniences. If we attempted to avoid them by the
adoption of any ratio, we should be mistaken.
The inequality of States could not be remedied.
If a remedy was sought, it must be found in the
Senate. The large States had not that exclusive
weifi^ht which had been stated. If the number of
the large States in this House should overbear the
smaller States, they would find their protection in
the Senate. The fractional loss, so much dwelt
on, was not a loss to the State, it was only a loss
to that part of the State which was unrepresent-
ed, and the loss would be the same to a larger
State, if its unrepresented fraction was equally
great.
Mr. V. N. said, it had always been his desire to
consult the wishes of the people and to conform
to them. He considered those wishes as soleninly
expressed in the Constitution, which had decided
that the ratio should not be less than thirty thou-
339
HISTORY OF CONGRESS.
340
H. OF R.
Apportionment Bill.
December, 1801 .
sand, and in the law passed immediately after the
adoption of the Constitution, fixing the ratio at
thirty-three thousand.
As to the experience of the States, so often ap-
pealed to, he would state that of his own. The
constitution of New York originally fixed the
representation in one branch at three hundred, and
in the other at one hundred and fifty. After suf-
fering the inconveniences of so large a legislative
body, a convention had been called, which reduc-
ed the one branch to one hundred and fifty, and the
other to thirty-two members.
It was the opinion of some gentlemen that the
essential principle of our Government was the
equal representation of the States in the Senate.
This was a mistaken opinion. The federalism
of the Gcyernment might have been as well pre-
served by an unequal representation in the Sen-
ate. The feature was not the offspring of princi-
ple, but of concession. If we looked to antiquity,
we would observe the smaller States of a Confed-
eration always inferior to the larger ; and he rec-
ollected one case of a Confederation, in which
one State was entitled to thre^, another to two,
and the third to one representative.
Mr. Smilie heartily concurred in opinion with
the gentleman from New York, that we ought
not to respect local feelings, but that we ought to
go upon' general grounds. Possessing these prin-
ciples, we still know how difficult it is to do com-
plete justice. For himself he would be satisfied
with the ratio of thirty-three, if he could not ob-
tain that of thirty thousand. He was in favor of
a large representation, because he relied on that for
safety «nd economy. For, when he considered
the great powers of the other branches of the Gov-
ernment, (powers, in the opinion of some men,
too great.) ne thought it was their duty to impart
to that House all the Constitutional power that
could be conferred. This would enable the House
to resist all encroachments attempted to be made
upon it.
Mr. Bacon said that, for himself, he was satis-
fied with the present ratio, as it stood in the bill.
Thi% was the ratio which nad been adopted when
our numbers were much less than the^ now are ;
that it did not appear but that it had given gene-
ral satisfaction ; and that no other inconveniences
had accrued than such as might be expected to
follow from the adoption of any other ratio what-
ever. It would seem to be rather unnatural, and
the reverse of what was contemplated by those
who enacted the Constitution, as our numbers in-
crease, to lessen the ratio of representation. He
was, tnerefore^ against striking out the number
thirty-three, with a view to insert a lower number.
A divisor of thirty-three thousand would now
give a House consisting of at least one hundred
and forty members, which, even on the present
ratio, must soon become not only too expensive,
but unwieldy. It had been repeatedly urged that
the present ratio leaves a very large fraction to
the State of Delaware. This, it was admitted,
was matter of regret ; but that, let what ratio
might be adopted, such fractional parts must be
expected to fall somewhere ; that such fractions
would be likely to vary, from time to time, and
shift from Slate to State, as the population may
increase and vary in the several States. And Mr.
B. did not conceive that the particular case of
Delaware, hard as it might seem^ furnished a suf-
ficient reason for altering an entire system.
As to what had been urged of the disadvantage
to which Electors were subjected in lar^e dis-
tricts, of not knowing the characters of their Rep-
resentatives and candidates, Mr. B. observed that
this was a disadvantage which was lessening with
rapidity from year to year, and from one election
to anotner ; that to whatever inconvenience elect-
ors may heretofore have been subjected by the
want of a knowledge of their candidate, from this
inconvenience they are already in a sreat measure
relieved ; and it must, in a very short time, en-
tirely case to exist. If any inconvenience of this
kind still remains, by an election or two more, ic
would be entirely removed. It had been urged
that Delaware had but one Representative, and
every State ought to have two. But, why two,
Mr. D. queried, rather than three? It is true, that
two are better than one ; and three are better than
either one or two ; for, as we have long since been
told, *' a three-fold cord is not easily broken."
Mr. B. concluded by saying that, as thirty-
three thousand was the ratio which had been
adopted when our population was much less than
it now is; and as it has been practised U[>on with-
out any inconvenience or general dissatisfaction,
he was unwilling to risk the uncertain consequen-
ces of an innovation at this particular time.
Mr. T. Morris was of opinion that the argu-
ments drawn from the representation in the Sen-
ate had nothing to do with this question. The
House had a Constitutional duty to perform, that
was highly interesting. The only question is,
How it shall be performed ? The people ought
to be fully represented ; that is, the number of
their representatives should be increased until that
number became inconvenient for the transaction
of business. He had never been a friend to an
enormous Legislature ; such as that in France, a
mob convention. He thought the idea incorrect
that this House should acquire a weight that
might cause it to bear down the other branch of
the Legislature. He hoped, if any such attempt
should be made, that body would have suffi-
cient spirit to resist it; and he trusted there
would always be firmness enough here to resist
any encroacnment attempted.
As to the present ratio guiding, he did not
think that the House should be governed by any
uniform rule. They ought, on the contrary, to
be governed by the existing circumstances. Not
believing that any inconvenience would arise from
the augmented representation on the ratio of
thirty thousand, he would be in favor of it from
the reasons he nad assigned.
Mr. Dennis did not rise to say anything new
on the subject; but merely, as he had altered his
mind since the business was before the House, to
assign some of the reasons which had influenced
him. He was now in favor of the ratio of thirty
thousand. His first impressions were against it
341
HISTORY OF CONGRESS.
342
December, 1801.
AppoTiionmenl Bill.
H. OP R.
from ao apprehension that the increased numbers
of the House would increase exoense, and pro-
duce disorder. But he acknowledged himself
convinced by the arguments which had fallen
from the gentleman from Virginia, which he
thought counterbalanced his previous apprehen-
sion. Mr D. thought it all important to preserve
an equilibrium between the dififereut departments
of the Government, and he was convinced that
this would be best effected by making the repre-
sentation in this House as large as the Constitu-
tion permitted, and convenience justified. If we
expected to retain the confidence of the people, it
was necessary to increase the Representative
branch ; for it would be in vain to look for that
confidence necessary to give it a proper portion
of energy, unless there existed a sympathy be-
tween the elector and the elected.
Mr. RANnoLPH hoped the amendment would
not obtain. The difference between the effects of
the two ratios was not very important ; but it was
highly important that a doctrine so heretical and
improper as that which had been avowed, should
be exploded on its first annunciation. He meant
that doctrine which considered this House as the
Representatives of the people. When the Con-
stitution was formed, two great difficulties pre-
sented themselves. The large States refused to
confer on the Government greater powers than
those it enjoved, which deeply affected their
wealth and tneir numbers, unless, according to
the ratio of their numbers, they should partici-
gate in the administration of it ; while the smaller
Itate^ withheld their concurrence, unless their
sovereignties were guarantied and protected.
These two difficulties were surmounted by the
plan of the present Constitution ; according to
which the members of this House were the Rep-
resentatives, not of the people, but of the Slates
in proportion to their numbers. This was the
theory of the Government for which he must
contend.
Mr. R. believed that the strongest objection
urged against the adoption of the Constitution,
was, that it tended to a consolidation of the States.
But when he looked into it with a Federal eye.
(and with no other eye could he ever look at it.)
he saw the State sovereignties in all its parts ac-
knowledged and protected. Of this, the very hill
was itself a proof. For the apportionment was
not among the people, but among the States, ac-
cording to the numbers of each. Believing that
this House is the representative of States, it was
his opinion that so long as the relative weight of
States could be preserved, it was immaterial that
each State should be represented by a large num-
ber of members.
It was with extreme regret, and some diffidence,
Mr. R. said, that he differed from his colleague on
this subject. His colleague wished to increase
the House to such an extent as to make it the de-
pository of the whole confidence of the people.
Mr. R. wished it to possess that confidence so far
as related to Federal objects, but no further. In-
crease it, according to the theory of gentlemen,
make it in point ofnumbers, a British Parliament,
or a French Convention, and you will propor-
tionably diminish the confidence of the people
in the State governments. They will become
feeble barriers against the powers of the General
Grovernment; and the people will inquire for
what purpose they elect their State Legislatures.
Mr. R. believed it to be of infinite importance that
the poises of the Government should be preserv-
ed -y that it should confine itself to Federal objects.
His object, therefore, was to preserve on that floor
the proportionate weight between the several
States which the Constitution had fixed.
Had any objection been made to the old Con-
gress under the Confederation, that was federally
organized, for the want of talents or integrity?
No. The only objection was, that they wanted
power. Had the public affairs been conducted
with less ability than they are at present? He
had neither heard, nor did he believe that they
had.
Mr. R. concluded, by making some remarks on
the score of convenience, similar to those already
stated.
Mr. MiTCHiLL, in a speech of some length, sup-
ported the ratio of thirty thousand.
Mr. S. Smith felt indifferent whether the ratio
of thirty- three; or that of thirty thousand, were
adopted ; but felt anxious that justice should be
done to the State of Maryland. He understood
that radical errors existed m the numbers given to
that State ; that in Harford county there were
returned only three thousand slaves, whereas there
ought to have been returned eighteen thousand ;
and that in Cecil there had been returned nine
thousand, instead of fifteen thousand. He hoped,
in order to have these errors corrected, the Com-
mittee would rise, that the original returns in the
office of State might be exammed.
This motion gave rise to a conversation of some
length, in which on one side the impropriety and
injustice of making an apportionment under the
existing errors, and without the return from Ten-
nessee, were argued ; and, on the other side^ the
great inconvenience of delay, and the inability of
the House to obtain a correction of errors, which,
if attempted in one instance, might be attemptea
in many.
Mr. Van Ness informed the . Committee that
the return from Tennessee was received at the
office of State, and that it made the population of
that State amount to ninety-two thousand free in-
habitants, and thirteen thousand slaves.
It was ultimately agreed that the Committee
rise, report progress, and ask leave to sit again;
which was granted.
MoNOAY, December 21.
A petition of sundry inhabitants of the town of
Alexandria, in the District of Columbia, was pre-
sented to the House and read, praying that a law
may pass to authorize the Corporation of the said
town more effectually to enforce the collection of
taxes for corporate purposes.
Also, a petition of sundry inhabitants of the City
of Washington, in the said District of Columbia,
343
HISTORY OF CONGRESS.
344
H. OF R.
Delegate from Mississippi.
December, 1801 .
prating that Congress will adopt such regulations
for the purchase and sale of victuals and provision,
as may tend to establish and support a market. in
the said city.
Ordered, That the said petitions be referred to
the committee appointed on the eighth instant, to
inquire whether any, and, if any, what, alterations
or amendments may be necessary in the existing
government and laws of the District of Columbia,
and to report by bill, or otherwise.
Mr. Randolph^ from the joint committee ap-
pointed, on the seventh instant, to take into con-
sideration a statement made by the Secretary of
the Senate, respecting books and maps purchased
pursuant to a late act of Congress, and to make
report respecting the future arrangement of the
same, made a report ; which was read, and ordered
to lie on the table.
On motion that the House do con^e to the fol-
lowing resolution :
*^ Resolved, by the Senate and House of Representatives
of the Untied States of America in Congress assembled,
That the Secretary of State be directea to cause to be
furnished to each member of the two Houseii of Con-
gress, a copy of the laws of the sixth Congress :** .
It was resolved in the affirmative.
The Speaker laid before the House a letter from
the Secretary of the Treasury, accompanying a
report and sundry statements, prepared in pursu-
ance of the act '' Supplementary to the act, entitled
^An act to establish the Treasury Department ;"
which were read, and ordered to be referred to the
Committee of Ways and Means.
The Speaker laid before the House a letter from
the Secretary of the Treasury, accompanying two
' statements, marked (A) and (B) relating to the
Internal Revenue of the United States ; also, a
letter to him from the Commissioner of the Rev-
enue, explanatory thereof; which were read, and
referred to the (Jommittee of Ways and Means.
On motion, it was
Resolved, That provision ought to be made by
law for extending the privilege of franking to the
Delegate, for the time being, from the Mississippi
Territory; and for making the same compensation
for his travel and attendance, that is allowed the
Representatives of the United States.
Ordered, That a bill or bills be brought in, pur-
suant to the said resolution ; and that Mr. Davis,
Mr. TiLLiMGHAST, and Mr. Josiah Smith, do pre-
pare and bring in the same.
On motion, it was
Ordered. That the Committee of Commerce
and Manufactures be authorized to report by bill,
or bills, or otherwise, on all such matters as shall
from lime to time be referred to them by the House.
A petition of Peter Lee, a free ne^ro, was pre-
sented to the House and read, praying relief, in
consideration of the loss of an e^e, and other in-
juries received, whilst a soldier in the American
Armjr during the Revolutionary war with Great
Britain.
A motion being made, and the question put, that
the said petition be referred to the Committee of
Claims, to examine and report thereon, it passed
in the negative.
The Speaker laid before the House a letter from
the Secretary of the Treasury, accompanying two
letters from the Commissioners of the City of
Washington, and sundry documents exhibiting a
state of their receipts and expenditures, and the
progress made in the public buildings, from the
18th day of November 1800, to the 18th of Novem-
ber, 1801 ; which were read and referred to the
Committee of Ways and Means.
DELEGATE FROM MISSISSIPPL
The House resolved itself into a Committee of
the whole House on the report of the Committee
of Elections, to whotn were referred the credentials
of Narsworthy Hunter, who has appeared as a
Delegate from the Territory of the United States
known by the name of the Mississippi Territory.
Mr. MiLLEOGE spoke forciby, and with consid-
able eloquence against agreeing to the report of
the committee; he said it was not a matter of pri-
vate but of general concern — that Greorgia had
jurisdiction over that Territory ; to prove this, he
called for the reading of the memorial of Georgia
to the Legislature of the Union.
[The memorial was extremely long, and was
read but in part.]
Mr. M. insisted on the right of Georgia to the
soil ; he would assert to that body and to the world
that she had never ffiven up that right ; and that
therefore the laws that had been passed by Con-
gress for the government of that Territory were
void, and the gentleman elected as a delegate to
Congress by the Legislature of that Territory had
no right to a seat in tne House. Gentlemen might
say what they please of the expediency of Con-
ffress making laws for the government of that
Territory, yet that expediency must yield to justice
and to just claims ; depriving Georgia of her com-
mand over that soil and over the people of that soil,
was a glaring violation of right. Commissioners
had been appointed to settle the dispute between
the United States and Georgia ; those commission-
ers are here, and probably it will not be long be-
fore those claims are adjusted; he hoped and
trusted no further proceedings would take place
till the dispute was completely settled.
Mr. Bayard. — The gentleman from Georgia ap-
f)eared to mistake the object of the report of the se-
ect committee ; that committee was appointed to
examine the credentials of Mr. Hunter, and to see
whether the Legislature of the Mississippi Terri-
tory had a right, by the law of Congress regula-
ting that government, to send a delegate, to exer-
cise here the right of debating, but not of voting;
it was not to admit into the Union a new State,
or to erect a new State within the bounds of
another. The law of Congress, establishing the
government of that Territory, declares that when
in that Territory there shall be such a number of
inhabitants, they shall have a House of Represent-
atives and a Legislature; and that when their in-
habitants shall nave increased to such a number,
the Legislature may appoint a delegate to Con-
?ress, with the right of debating, but not of voting,
t is not now a question whether a new State shall
be erected, but whether this member be duly cho-
345
HISTORY OF CONGRESS.
346
December. 1801.
Ddegate from Mississippi.
H. OP R.
sen. Nor are the interests of Greorgia al all af-
fected : the fifth section of the law e.stablishiDg this
Government expressly declares that nothing in
the law for estaolishing a temporary soverDment
there, shall in any manner affect any claims of the
State of Georgia to that soil. Commissioners are
appointed on the part of the United States and
Georgia to settle the dispute between the two
Governments; but till, those disputes shall be set-
tled, shall the inhabitants of tnat Territory be
without a government ? No sir, it js not a matter
of discretion with us; we are bound by a positive
law of Congress. If the gentleman was urgent
against Mr. Hunter's taking his seat, the only
way to effect it is, by repealing the law of Con-
gress establishing the Government of the Missis-
sippi Territory.
Mr. Davis. — The House have no business to
meddle, in this case, with the claims of the United
States, or of Greorgia, to that Territory ; we have
only to examine the credentials of the member,
and to see whether the Legislature, in conformity
to the act of Congress, were authorized, or not, to
send a delegate. If that act of Congress be un-
constitutional, it muKt be repealed bv the Senate
and House; yet, as it now is, we are oound to but
one decision on this subject.
Mr. Randolph. — He thought gentlemen did not
treat the member from Georgia with due candor
and respect. It should be remembered that Geor-
gia had ever protested against the laws relative to
the Mississippi Territory. It was the duty of that
gentleman, as a member from the State of Geor-
gia, to dissent; constructions might be put on si-
lence. The United States had arrogated the power
of governing that Territory, at the same time say-
ing that such assumption of power should not af-
fect any claims of Greorgia ; but did not this very
assumption of a right to govern, prejudge claims ?
We are told the commissioners are on the eve of
settling the dispute ; let us wait till this be accom-
plished. Mr. R. motioned that the committee
rise.
Mr. Claiborne — He thought it right in the
gentleman from Geor|;ia to dissent ; it was to be
expected ; he 'did not rise to censure him. He did
not conceive that any gentleman in the House
wished^ in this matter, to do anything that would
prejudice the interest or claims of Greorgia. The
assumption of a power to give laws to the Missis-
sippi Territory arose from the necessity of the
thing, and from benevolence to the inhabitants ;
he would not suffer an infraction of the Constitu-
tion for the world ; no, not to save a world. [The
Chairman called him to order : the question was
now on the Committee's rising.] Mr. C. said he
did not know but he might be out of order, but if he
was, he believed others liad been in the same situa-
ation. He wished to express his opinions on the
subject in common with others. It should be con-
sidered that the delegate from the Mississippi Ter-
ritory would have no right to vote, but only to
debate ; he would be only a sting, but without
poison. We ought, morever, to oblige our breth-
ren of that southern hemisphere; we ought to
hear their statements, attend to their wants, Ac.
Mr. Dana. — He was for the Committee's rising.
It had been usual to suffer the reports of the Com-
mittee of Elections to lie on the table, and if no
protest or complaint were entered, nothing further
was done with them, and the members kept their
seats. In the case ot the Northwestern and Indi-
ana Territories, they were obliged to inquire, if it
was the first time, whether there was a right to
send a delegate ; such is the situation now of the
member from the Mississippi Territory; the re-
cords show their right to send, the report states
that this delegate is duly chosen. Let the report
lie on the table, and the member keep his seat.
Mr. Griswold. — He was not in favor of the
Committee's rising. It was extremely unpleasant
to the delegate from the Mississippi Territory to
remain in this situation; he himself claimed a seat
in that House, not as a matter of favor but of right;
and this House had not the power of depriving
him of this right, without repealing the act of Con-
gress establishing a government over that Terri-
tory. Some gentlemen have said that the rights
of Georgia wnl be affected by the admittance of
this member to a seat ; such ceitainly could not be
the case ; if the claims of Georgia are at all affected,
it is done already by act of Congress; yet, for his
part, he did not consider the claims of Georgia as
affected or injured. Nor ought we to wait the
decisiou of the commissioners: that decision may
take place in a month, and perhaps will not these
six months.
Mr. Macon. — There ought to be some petition
or statement of facts presented by the member
from Georgia, or some other person, to justify a
discussion at this time, or to prevent the delegate
from taking his seat. He wisned his right and his
credentials treated as those of any other member.
He agreed with the gentlemen from Connecticut,
(Mr. Dana.) that it were better for the committee
to rise, witnout leave to sit again ; the member
would then be entitled to his seat and his pay, till
it should be shown that he has no claim to them.
Mr. Bataro. — He did not agree with the Speak-
er ; the face of the report of the select committee
gives sufficient cause for a decision of the Com-
mittee of the Whole. The gentleman from Geor-
gia opposes the decision of the select committee;
and it is due to the member from Georgia, and to
the delegate, to have the opinion of the House — to
have a prompt decision. The mere question is,
whether he has been duly elected ; not whether the
Legislature of the Mississippi Territory had a right
to elect him. Gkntlemen have said we are preju-
dicing the claims of Greorgia, that their rights are
implicated in this step ; tney have said that the
act of Congress establishing a government was an
assumption of power; not so: by the Spanish
Treaty that Territory was ceded to the United
States ; the inhabitants were without a govern-
ment ; they petitioned Congress for some lorni of
government. What was to be done ? The inter-
position of Congress arose ex necesntaie rei: It
was no assumption of power or assertion of claims.
It was a necessary establishment of a temporary
government, to continue while there was necessity.
He was for an immediate decision.
347
HISTORY OF CONGRESS.
348
H. OP R.
Military Peace Establishment.
December, ISOl .
Messrs. Randolph, Davis, Bayard, S. Smith,
Macon, and Griswold, continued the debate.
The report of the select committee was agreed
to. Mr. MiLLBDQE wished the yeas and nays, even
if he stood alone. They were taken, and stood,
yeas 77, nays 8, as follows :
Yeas — Willis AIstoHi James A. Bayard, Phanuel
Bishop, Thomas Boude, Robert Brown, William But-
tler, Thomas Claiborne, Matthew Clay, John Clopton,
John Condit, Richard' Cutts, Samuel W. Dana, John
Davenport, Thomas T. Davis, John Dennis, Lucas El-
mendorf, Ebenezer Elmer, Abiel Foster, Calvin God-
dard, Edwin Gray, Andrew Gregg, Roger Griswold,
John A. Hanna, Daniel Heister, Joseph Heister, Wil-
liam Helms, Joseph Hemphill, Archibald Henderson,
William H. Hill, WUliam Hodge, David Holmes, Ben-
jamin Huger, George Jackson, Thomas Lowndes, Ebe-
nezer Mattoon, Lewis R. Morris, Thomas Morris, James
Mott, Thomas Moore, Samuel L. Mitchill, Anthony
New, Thomas Newton, jr., Joseph Pierce, Elias Perkins,
Thomas Plater, Nathan Read, William Shepard, Israel
Smith, John Cotton Smith, John Smith, of New York,
John Smith, of Virginia, Josiah Smith, Samuel Smith,
Henry Southard, Richard Sprigg, John Stanley, Joseph
Stanton, jr., John Stewart, John Stratton, John Talia-
ferro, jr., Benjamin Taliaferro, Samuel Tenncy, David
Thomas, Thomas Titlinghast, Philip R. Thompson,
Abram Trigg, John Trigg, George B. Upham, Philip
Van Cortlandt, John P. Van Ness, Joseph B. Vamum,
Isaac Van Horn, Killian K. Van Rensselaer, Peleg
Wadsworth, Benjamin Walker, Lemuel Williams,
and Henry Woods.
Nats — John Bacon, Samuel J. Cabell, William Eus-
tis, Michael Leib, John Milledge, John Randolph jr.,
John Smilie, and Richard Stanford.
Ordered^ That the residue of the said report of
the Committee of the whole House do lie on the
table.
Tuesday, December 22.
Another member, to wit: John Rutledoe, from
South Carolina, appeared, produced his creden-
tials, was qualified, and took his seat in the House.
M.r. Samuel Smith, from the Committee of
Commerce and Manufactures, presented a bUl to
amend an act, entitled "An act to retain a further
sum on drawbacks, for the expenses incident to
the allowance and payment thereof, and in lieu
of stamped duties on debentures;." which was
read twice and committed to a Committee of the
whole House on Monday, the fourth day of Janu-
ary next.
Mr. Dayis, from the committee appointed yes-
terday, presented a bill to extend the privilege of
franking tetters to the Delegate from the Missis-
sippi Territory, and making proyision for his com-
pensation ; which was read twice, and ordered to
De engros&ed, and read the third time to-day.
Ordered^ That Mr. Greoo be added to the com-
mittee« appointed on the eighth instant, to inquire
whether any, and, if any, what, alterations or
amendments may be necessary in tne existing gov-
ernment and laws of the District of Columbia, in
the room of Mr. Sumter, elected a Senator of the
United States for the State of South Carolina.
A Message was received from the President of
the United States, by Mr. Lewis, his Secretary,
transmitting certain documents supplemental to
those already transmitted; and- informing the
House that two other documents, viz: one re-
specting the Barbary Powers, and the other exhib-
itinff a view of the officers of the Government of
the United States would be tr&nsmitted as soon as
prepared.
The documents received were : 1. The Census
of Tennessee. 2. A letter from Mr- Humphreys
respectinjg Algiers. 3. Extract of a letter from
Commodore Dale to the Secretary of the Navy.
4. Extracts of letters from Capt. Sterret. 5. Let-
ters from the Bashaw of Tunis, dated April 15,
1801,,and the answer of the President, dated Sep-
tember 9, 1801.
Ordered to be printed
Such papers as respected the Barbary Powers
were referred to the committee already appointed
on that subject: and the Census of Tennessee
was referred to the Committee on the Apportion-
ment bill.
Mr. Smith called up the resolution, yesterday
made by him, for the adjournment of the two
Houses from the 26th inst., to the 2d of January.
On which, the question being taken, it was lost —
ayes, 23.
An ens^rossed bill to extend the privilege of
franking Tetters to the Delegate from the Missis-
sippi Territory, and making provision for his com-
pensation, was read the third time and passed.
A Message from the Senate informed the House
that the Senate have agreed to several resolutions,
in the form of joint resolutions of the two Houses.
" making provision for the disposition and arrange-
ment of the books and maps purchased, pursuant
to law, for a Congresssional Library ;" to which
they desire the concurrence of this House.
The said resolutions were read, and ordered to
be committed to a Committee of the whole House
to-morrow.
MILITARY PEACE ESTABLISHMENT.
The House according to the standing order of
the day, resolved itself into a Committee of the
whole House on the state of the Union.
Mr. S. Smith made the following motion :
**Reaobfed, That it is expedient to fix the Military
Peace Establishment."
The motion was opposed by several members
as unseasonable. The President in his Message
had informed Congress that the Secretary at War
would lay before them a statement of the military
force of the United States, and of the posts and
fortifications requiring protection. Until this in-
formation was received, it was thought prema-
ture in the House to come to any decision.
After a conversation of some length, Mr. Smitb
withdrew his motion.
Mr. Gregg then moved three resolutions.
The first was amended, and agreed to. It was,
in substance : That it is expedient that the law
for regulating the militia of the United States be
revised and amended. This was afterwards con-
firmed in the House, and a committee of nine
appointed.
349
HISTORY OF CONGRESS.
350
December, 1801.
lAhrary of Congress.
H. opR.
The secoDd was for the appointment of a com-
mittee to JDqoire whether any, and what, additions
are necessary to be made to the military stores of
the United States.
The third was for the appointment of a com-
mittee to inquire whether any, and what, amend-
ments are necessary to be made in the laws re-
specting the fortifications of the harbors of the
United States.
These two resolutions were a|^eed to by the
Committee, and reported to the House, who post-
poned the consideration of them till Monday, for
the purpose of gainin? the information promised
on this subject in the rresident's Message.
Mr. Randolph then moved that the Secretary
of War be directed to lay before the House a
statement of the present Military Establishment,
together with an estimate of all the posts and sta-
tions where earrisons will be expedient, and of
the number of men requisite for each garrison.
Agreed to.
Wednesday, December 23.
The Speaker laid before the House a plan of
the lands of the United State within the bound-
ary line northwest of the river Ohio, transmitted
by the Secretary of the Treasury, as referred to
in his report respecting the public debt and finan-
ces of the United States, received on the twenty-
first instant : Whereupon.
Ordered^ That the saia plan be referred to the
Committee of Ways and Means.
A petition was read from sundry inhabitants of
the District of Columbia, prayins^ the aid and
patronage of Congress in the establishment of a
company for building a bridge over the Potomac.
Referred to the Committee on the Territory.
A Message was received from the President,
transmitting a more correct return of the Census
of Maryland, ju>i received from the Marshal,
than that before ,> resented.
On motion, it - as Ordered^ That the copy of
the act of the British Parliament, entitled ^* An
act for carrying into execution the Treaty of Am-
ity, Commerce, and Navigation, concluded be-
tween His Majesty and the United States of
America," heretofore transmitted to this House by
the Secretary of State, be printed vfor the use of
the members of both Houses. *
LIBRARY OF CONGRESS.
In Com.nittee of the Whole, the resolutions of
the Senate relative to books, maps, <fcc., were con-
sidered. The third resolution was amended sojis
to give the right of taking books from the Con-
fressional Library to the Attorney General, the
udges of the Supreme Court, while that court is
in session, and to foreign Ministers.
On the fifth resolution, that of appropriating one
thousand dollars annually for the increase of the
library, some debate took place.
Mr. Batard advocated the appropriation, should
it extend to ten or twenty years.
Mr. Varnum thought tne mode of appropriating
money by resolution simply, improper jne thought
a law ought to be passed.
Mr. Batard removed those objections by say-
ing, that that would be done when the resolutions
came before the House.
Mr. Macon thought the time of the appropria*
tion ouffht to be limited.
Mr. Lowndes moved to strike out the word
" annually." Agreed to.
Mr. Bayard, in considering the resolutions of
the Committee of the Whole, was for striking out
the words ^ Secretary of the Senate and Clerk of
the House," supposing a Librarian ought to be
appointed by the President.
When the subject was under discussion before
the House, Mr. d. advocated the annual appro-
priation of one thousand dollars for ten years. He
thought such measure advisable in preference to
expending that sum at once, as there are continu-
ally new books, maps, <fcc., published, and there
was the greater probability of being able to pro-
cure the most valuable publications.
Mr. Randolph talked much of old practices ;
practices of expending unnecessarily, dbc; he said
that expectation was on tiptoe to see the new
Eractices, the practices of saving. For his part
e was unwilling to expend the public money, ex-
cept in cases of absolute necessity.
Mr. Bacon, on mere principles of economy,
would leave it Indofinite, and a succeeding Con-
gress might diminish or add to the sum to be an-
nually expended for the library, as they pleased.
He had not made a calculation, but he believed
the House expended as much in deliberating as
the sum about which they were contending would
amount to.
Mr. Qoddard, of Connecticut, spoke in favor of
one thousand dollars annually.
Mr. &LMER spoke against it.
Mr. Batard said, in reply to Mr. Randolph,
as the gentleman had talked so much of the dispo-
sition of the House heretofore to expend unneces-
sarily public money, he wished he would specify
to wnat measures he alluded. It had been com-
mon to make such charges generally ; he believed
few dared specify. For bis part he believed he
was anxious as any one to hold fast and tight the
purse-strings of the public. He would be as will-
mg to curtail Executive power as any one : but if
the gentleman's principles are carried to their ex-
tent, they should indeed spend but little. It had
been saia, we were the most enlightened people
on earth; if that be not altogether true, let us
make it as much so as possible.
Mr. Bacon was in favor often thousand dollars
annually. He thought it a moderate sum and a
necessary appropriation.
It was carriea in favor of one thousand dollars,*'
but only for one year.
Mr. Batard moved that, instead of the Secre-
tary of the Senate and the Clerk of the House, a
Librarian be appointed by the President ; which
proposition, after some debate, was not carried.
Thursdat, December 24.
The Speaker laid before the House a letter and
report from the Postmaster General, accompany-
351
HISTORY OP CONaRESS.
362
H. OP R.
Library of Congress.
December, 1801.
ing a list of post roads which have not produced
one-third of the expense of carrying the mail on
the same, after having been established for two
years, transmitted in pursuance of the ''Act to
establish the Post Office of the United States ;"
which were read, and ordered to be referred to the
committee appointed, on the tenth instant, to in-
quire whether any, and what, amendments are
necessary to be made in the acts establishing a
post office and post roads within the United States.
On motion, it was Besolved, That the Secre-
tary of State be directed to lay before this House
a table showing the comparative duties paid, in
the ports of Qreat Britain, on goods imported into
Great Britain in American, foreign, and British
bottoms, since the fifth of January, one thousand
seven hundred and ninety-eight, so far as the same
respects the commerce of the United States.
The Speaker laid before the House a letter
from the Secretary of War, accompanying a state-
ment of the present Military Establishment of the
United States, marked [A,] and an estimate of all
the posts and stations for which garrisons will be
expedient, and of the number of men requisite, in
his opinion, for each garrison, marked [BJ ; trans-
mitted in pursuance of a resolution of this House
of the twenty-second instant ; which were read,
and ordered to be referred to the Committee or
the whole House on the state of the Union.
On motion, it was Besolved, That the Secretary
of State be directed to lay before this House tbe
laws of the Northwestern and Indiana Territo-
ries, imposing taxes on the lands of non-residents.
On a motion made and seconded, it was
Ordered, That the order of the day for the
House to resolve itself into a Committee of the
whole House on the bill for the apportionment of
Representatives among the several States, accord-
ing to the second enumeration, be postponed until
Monday, the fourth day of January next.
The House adjourned to Monday.
Monday, December 28.
The Speaker laid before the House a letter
from the Secretary of State, accompanying his
report on the memorial of Philip Sloan, referred
to him by order of the House, on the fourteenth
instant ; which were read, and referred to a Com-
mittee of the Whole House on Wednesday next.
Tuesday, December 29.
A petition of sundry citizens of the United
States, resident in the Territory of Columbia, was
presented to the House and read, praying that a
bridge may be erected from the western and south-
ern extremity of the Maryland avenue, in the City
of Washington, to the nearest and most conve-
nient point of Alexander's Island, in the river
Potomac. — Referred to the committee appointed
on the eighth instant, to inquire whether any, and
if any, what alterations or amendments may be
necessary in the existing government and laws of
the District of Columbia.
Mr. Varnum, from the committee appointed, on
the seventh instant, to prepare and report such
standing rules and orders as are proper to be ob-
served in this House, made a report ; which was
read, and ordered to be committed to a Commit-
tee of the whole House to-morrow.
Mr. Davenport, from the Committee of Re-
visal and Unfinished Business, to whom it was
referred, to examine and report such laws of the
United States as have expired, or are near expir-
ing, made a report, in part ; which was read, and
ordered to lie on the table.
Mr. Randolph, from the committee on the re-
solution^ of the Senate, on the subject of a Con-
gressional library, begged leave to report by bill
which, being granted, he reported a resolution.
'* that the House disa£;ree to tne said resolutions.'-
The House concurred.
Mr. Randolph moved the following resolution :
*< Resolved, That it is expedient to reduce the 3(ili-
tary Eetablishment of the United States."
It was not the wish of Mr. Randolph to pre-
cipitate a decision on this important subjecL He,
therefore, was willing' that his resolution should
lie for consideration at some future day.
Ordered, That it do lie on the table.
LIBRARY OF CONGRESS.
Mr. Randolph reported a " bill concerning the
library for the use of both Houses of Congress f
which, after beinff twice read, was committed to
a Committee of the whole House: Mr. Rctledge
in the Chair.
The bill provided that the members of both
Houses, the President and Vice President of the
United States, and the Judges of the Supreme
Court, should have liberty to take any book from
the library to read.
Mr. Sprigg moved, to add the Judges of the
District of Columbia. He was supported in ar-
gument by Mr. Dennis, upon the ground of the
importance of the causes which this especial dis-
trict would present, and the great expense and ex-
treme scarcity of some most valuable and neces-
sary law books.
Mr. Bayard objected to the motion, because
he could discover no reason for distinguishing the
judges of the district from others; but Judges of
the Supreme Court being far from their libraries,
required such references. He hoped the Con-
gressional Library would never be subjected to the
abuse which books used in courts of justice were
too liable to.
The motion was not agreed to.
Some observations were made as to the time
which the library was to remain open.
'Mr. Qriswold moved to confine it to the time
of the session of Congress.
It was carried, with an exception moved by Mr.
Southard, in favor of the Judges of the Supreme
Court, whose sessions do not accord with those of
Congress.
A blank was left as to the sum to be appropri-
ated, in addition to the remaining part of the ^xe
thousand dollars heretofore appropriated, for the
purchase of books.
On the Chairman's asking the sum with which
to fill the blank, Mr. Randolph moved to strike
353
HISTORY OF CONGRESS.
354
December, 1801.
Internal Tluces.
H. OP R.
out the sectioDs, observing that, of that sum, not
more than $2,200 had been used, and $2,800 re-
mained unexpended. He entertained no doubt but
Congress would aid the institution by every timely
grant.
It was stricken out. The bill was postponed
till to-morrow.
The several sections of the bill prescribe —
1. That the library, consistinfi; of all the books
of the two Houses, be kept in the room, last ses-
sion, occupied by tbe House of Representatives.
2 and 3. That the President of the Senate and
the Speaker of the House of Representatives ap-
point a librarian; and that the President and
Speaker have the superintendence of the library,
subject to the provisions of the act. The librarian
to be allowed two dollars a day.
4. No map to be taken out of the library; and
the books to be taken out by the President and
Vice President oi the United States, and the mem-
bers of the two Houses, by the Heads of Depart-
ments and Attorney General, durine the sitting of
the Legislature^ ana by the Judges of the Supreme
Court, during its sittings.
The unexpended balance of sums heretofore ap-
propriated, viz., $2,800, to be applied to the pur-
chase of books, under the direction of a joint com-
mittee of three members of each House.
The House then resolved itself into a Commit-
tee of the whole House, on the said report and
bill; and, after some time spent therein, the
Speaker resumed the Chair, and Mr. Rutledge
reported that the committee had had the said re-
port and bill under consideration, and directed
him to report to the House their agreement to the
resolution contained in the report, and several
amendments to the bill.
Wednesday, December 30.
A petition of Elias B. Caldwell, clerk of the
Supreme Court of the United States, was present-
ed to the House and read, stating the insufficiency
of the fees and other emoluments allowed him bv
law, and praying that the same may be increased,
and rendered more adequate to his services ; also,
that provision may be made, by law, for the safe-
keeping of the books and records of the said
Court. — Referred to Mr. Dennis, Mr. Thomas,
and Mr. Bishop ; that they do examine the mat-
ter thereof, and report the same, with their opin-
ion thereupon, to tne House.
Mr. Davis, from the committee appointed on
the 14th instant^ to inquire into the expediency of
giving further time to persons entitled to militarv
land warrants, to obtain and locate the same ; ana,
also, to report what provision ought to be made
by law to authorize the Secretary of War to issue
military land warrants, and duplicates of the same,
where satisfactory proof is made that the origi-
nals have been lost, destroyed, or obtained bv
fraud, made a report, in part ; which was read,
and ordered to lie on the table.
The House took up the Library bill, when Mr.
Randolph inoved to strike out that part which
gave permission to the Heads of Departments,
7th Con.— 12
Judges of the Supreme Court, and foreign Minis-
ters, to take out books ; which was agreed to, and
the bill was ordered to be engrossed for a third
reading to-day.
On motion of Mr. Randolph, the House went
into Committee of the Whole on the state of the
Union ; when Mr. Randolph submitted his mo-
tion of vesterday, viz: "that it is expedient to
reduce the Military Establishment of the United
States." He made the motion in Committee of
the Whole as it appeared to be more consonant to
the proceedings of the House.
Tne resolution was agreed to without a divi-
sion, and reported to the House, who concur-
red, and appointed a committee of five to bring
in a bill.
Thursday, December 31.
An engrossed bill concerning the library for the
use of both Houses of Congress was read the
third time, and passed.
Resolved^ That the said bill do pass, and that
the title be, ^*An act concerning the library fot
the use of both Houses of Congress."
A message was received from the Senate, offer-
ing, for the concurrence of the House, resolutions,
approving the gallant conduct of Captain Sterret
and his crew in the capture of a Tripolitan cor-
sair of superior force ; requesting the President to
present Captain Sterret with a gold medal with
suitable emblems ; and to present the other com-
missioned officers with swords ; with a conclud-
ing resolution, that the non-commissioned officers
and crew receive an extra month's pay.
Ordered^ To lie for consideration till Monday.
INTERNAL TAXES.
Mr. Davis moved the appointment of a com-
mittee to inquire into the expediency of repealing
the acts imposing duties on stills ana distilled spi-
rits, on refined sugars, on sales at auction, and on
pleasure carriages.
Mr. Davis said his object, in making this mo-
tion, was, that the House should accomplish that
directly, which had been this session attempted in
so circuitous a way as to embarrass and delay its
proceedings. He saw no reason for going into a
Committee of the Whole, in order to arrive at
decisions that might better be made directly by
the House itself.
On this motion a debate of considerable length
ensued, in which, on the one side, the reference to
a select committee, and, on the other, a reference
to a Committee of the whole House was advo-
cated. No decision was had, and oi course the
motion of Mr. D. was ordered to lie on the table.
Mr. MiTCHiLL observed, that it was contem-
plated, in the President's Message, that it would
be necessary to appropriate an annual sum for
Naval purposes. It appeared, also, from the Mes-
sagCj that some doubt was entertained by the Ex-
ecutive of the competency of his power to employ
superintendents, and to fix navy yards. He men-
tioned these circumstances with the view of offer-
ing a resolution that a committee may be formed
355
HISTORY OF CONGRESS.
356
H. OF R.
Internal Taxes.
Decbmbeb, ISOl
on the subject, who should inquire into the expe-
diency of applying to naval purposes the pro-
ceeds of the sales of public vessels.
On the suggestion of the Speaker, Mr. Mit-
CHILL moved the goinff into a Committee of the
Whole on the state of the Union, in which he
would make his proposed motion.
On this motion, a debate of considerable length
ensued, in which Mr. Davis declared that he
thought this the fit time to determine the propriety
of that circuitous mode of procedure, wtiicn had
been practised this session.
Mr. Davis^ for reasons which he assigned at
length, in which Mr. Eustis fully concurred, sup-
ported the propriety of a reference in the first in-
stance to a select committee.
Messrs. Griswold, Rutledge, Bayard, Ran-
dolph, and Dana, supported a reference to a Com-
mittee of the Whole.
The House decided in favor of going into a
Committee of the Whole ; when
Mr. MiTCHiLL moved, that so much of the Pre-
sident's Message as relates to naval preparations
and to the establishment of .sites for naval pur-
poses, be referred to a select committee, which
was agreed to in Committee, confirmed in the
House, and a committee of five appointed.
Mr. Batard, during the course of the debate —
in allusion to the adoption yesterday of the reso-
lution of Mr. Randolph for reducing the Mili-
tary Establishment, which he thought premature,
not considering the House as sufficiently ac-
quainted with the details of the subject to act
upon it — said, that if gentlemen were for reducing
the Army in whatever degree, or for abandoning
it altogether, he should go with them. He would,
on sucli occasion, be governed by the same princi-
ples which had hitherto guided him. He had
heretofore been disposed to repose a liberal confi-
dence in the Executive of the United States; and
when an increase of our military force had been
recommended by the President, ne had invariably
been for it; much more would he be disposed,
when a reduction was recommended from the
same quarter to sanction it by his vote. With the
Executive rested the responsibility of the exterior
defence of the nation ; and if the Executive was
of opinion that the nation was secure with a force
of tnree, two, or one thousand, or without even a
single man, he would concur with him in giving
effect to such a conviction.
Mr. Randolph was called up by these remarks.
He had little thought that his motion, agreed to
yesterday sub silentio, and without the least hesi-
tation, would have been made the topic of such
animated animadversion as he had heard to-day.
He would tell the gentleman from Delaware, that
his motion had neither been immature in sub-
stance, nor premature as to time. It would be re-
collected, that previous to its adoption, the Secre-
tary of War had been called upon to furnish infor-
mation to the House. He had furnished informa-
tion, to his mind completely satisfactory. He had
stated the establishment to be five thousand men;
and his opinion that all the garrisons required
only three thousand men. Could it. then, with
any reason be called premature to act upon such
information? If the gentleman from Delaware,
or other gentlemen thought so, why not combat a
decision at the time ? Did they imagine that,
without the expression of a murmur by them, the
mover would himself rise and oppose his own
motion ?
As to the delay which had been noticed, as
having taken place in the transaction of business,
it was not to be ascribed to any particular mode
of procedure ; but to the unusual languor of the
season ; to the absence of several members of great
weight ; to the augmentation of new members not
yet fully acquainted with the forms of business,
and to the unusual mass of information presented
to the House, which enlarged the field of action,
and to the delays of printing arising from the un-
usual quantity of matter sunmitted.
INTERNAL TAXES.
Mr. Bayard moved that the House resolve it-
self into a Committee of the Whole on the state
of the Union, for the purpose of enabling him to
offer a resolution to the following effect :
" Resolved, That the Committee of Ways and Means
be instructed to inquire into the expediency of repeal-
ing the laws laying duties on stills and distilled spiriu.
on refined sugar, on sales at auction, on pleaauraU<f
carriages, on stamps, and on postage of letters.*'
Mr. Bayard made this motion for the purpose
of placing the important subject contemplated bf
it in a tram for decision. He thought it full time
to commence our proceedings on it ; and in his
opinion, it was fit that the consideration of the
subject, generally, should go before the Committee
of Ways and Means. The subject was so im-
portant as to strike at the vital principles of our
revenue. The repeal of the internal taxes in-
volved a reduction of six hundred thousand dol-
lars in our receipts. The propriety of such a re-
duction did not constitute a distinct subject for
consideration, but depended upon the deductions
made on a comprehensive view of our finances,
which could only be taken by the Committee of
Wavs and Means, to whom was committed gen-
erally whatever regarded revenue.
If the minds of gentlemen, said Mr. B., were
made up to abolish all the internal taxes, it must
be to them perfectly immaterial to what commit-
tee a reference was made. He knew the flattering
prospects held out by the President, and he hoped
they would all be verified. But his own mind
was not made up, nor did he know that the minds
of other gentlemen were made up on the proprie-
ty of dispensing with these taxes. He was led to
tnis inference oy observing no official notice to
such effect in the communications made by the
Secretary of the Treasury. On the contrary, the
Secretary had so made his calculations, predica-
ted as they were upon the continuance of these
taxes, that his calculations would be greatly de-
ranged by dispensing with them. Mr. B. knew
not that we were prepared to leap this precipice.
If the public burdens could be reduced, ne would
be delighted with the act of reduction. Yet still, if
the sum of six hundred thousand dollars, derived
357
HISTORY OF CONGRESS.
358
December. 1801.
Internal Taxes,
H. OF R.
from these taxes, could be dispensed with, doubts
might be entertained whether the internal taxes
were those which should be first either reduced or
abolished. He held it to be a correct principle, that
taxation should be equal, and that no one class of
citizens should be burdened to the exemption of
all other classes. From a slight consideration of
the subject, he had found no other way of ena-
bling our brethren to the westward to participate
in the public burdens than by affording them an
opportunity of paying their portion of internal
revenue. It mieht appear, on investigation, that
more substantial relief would be afforded to the
rarious descriptions of our citizens, by continuing
the internal taxes, and reducing those on imports;
and if it should be thought proper to diminish the
burden imposed on our Western citizens, he would
ask whether that effect would not be more sub-
stantially accomplished by reducing the tax upon
salt ? It would be recollected that great opposition
had been made to the imposition of this tax,
which had been denominated oppressive, as it fell
upon an article of necessity.
Attention ou^ht, also, to be paid to the liability
of several articles to be smuggled, the only mode
of preventing which was well known to be a re-
duction of the duties.
Mr. B. stated these circumstances, not as evi-
dences of having matured his own ideas ; but to
show the necessity of referring the subject to a
committee, whose special duty it was to take a
general view of the resources and expenses of the
nation, and who. therefore, in the present stage of
the session, were alone in a situation to make the
requisite inquiry.
Mr. Edbtis said that the reasons offered by the
gentleman from Delaware were with him conclu-
sive that this was not the proper time for consid-
ering the subject. Until we know the r^uctions
in the expenditures of the Government that are to
be made, it is impossible that we can say how far
it will be expedient to reduce or abolish our taxes.
We had not determined to what extent the Army
or the Navy should be reduced, nor had we come
to any ultimate decision on any reduction what-
ever. For these reasons he must oppose a decision
at this tiine upon the subiect, whetner that deci-
sion was in this or any otner shape.
Mr. Bacon concurred with Mr. Eustis in con-
sidering any decision as at present premature.
Mr. RuTLEDGE viewed the subject as of great
importance. He could not figure to his imagina-
tion one likelv to occur this session of equal im-
portance. The President contemplated a repeal
of all the internal revenues, and the imposition of
all taxes upon imported articles. The Secretary
of the Treasury appears, by implication, to be of
a different opinion, and contemplates a continu-
ance of these duties. What is the object of the
gentleman from Delaware? Why. delay; time
for consideration, by reference of the subject to
a committee most competent to inquire? As to
the public burdens, every member on the floor bad
a common feeling. We do not wish to lay unne-
cessary taxes. But when taxes are laid, when they
are uncomplained of, it was indeed deeply inter-
esting without consideration to decide on their
abolition. Mr. R. said, for himself, he should be
embarrassed by being forced into an immediate
decision. We want information before we are
called upon to decide. The motion seeks that in-
formation. It sends the business to the Commit-
tee of Ways and Means, to whom it belongs of
right. It is their duty to consider it, for whatever
relates to revenue must go to them. Gentlemen
cannot say that they are surprised. By the reso-
lution, they are not called upon to decide upon
the soDJect ; they are only called upon to place it
in a tram for decision.
Mr. Macon hoped the business would be taken
up, and the sooner it was done the better. It was
certainly of great imports nce^ and the earlier the
House proceeded to consider it, the sooner would
they be prepared for deciding upon it. If the
vote of reference was final, the arguments of the
gentleman from Massachusetts would apply. But
this was not the case.
It had been said that the President had declared
his opinion that we can dispense with these taxes.
The statement was not correct. His opinion was
contingent. He had said, we may dispense with
these taxes in case we proportionably reduce the
expenses.
As to the remarks made respecting the different
opinions of the President and Secretary of the
Treasury, they likewise were erroneous. Distinct
views were taken by each. The President, con-
templating a reduction in the expenses, intimates
the expediency of repealing the internal taxes;
whereas the Secretary of the Treasury, taking
things as they are. states the effects of tneir con-
tinuance. From these circumstances, no diversity
of opinion could be inferred.
Mr. M. concluded by expressing a hope that the
expenses of the Gk)vernment would be reduced,
that the internal taxes would be taken off, and that
immediate measures would be pursued for pre-
paring the House for a final decision.
Mr. Eustis was alike hostile to the present mo-
tion and to that which had been made by the gen-
tleman from Kentucky, who had yesterday intro-
duced the subiect. He had heard the motion with
a sensation of uncommon surprise; for he was of
opinion that the public attention should not be at-
tracted, or the public sensation excited^ till we
should be able to determine the course proper to
be pursued. He felt himself unprepared to decide,
and believed other gentlemen were equally unpre-
pared. He hoped that he cherished a suitable re-
spect for the President of the United States,
though he did not know that he would ^o so far
as the gentleman from Delaware, and disband a
whole army at his word.
The wisest course was to wait until informa-
tion was obtained. This would in fact be gaining
time. If the Committee of Ways and Means were
to consider the subject, it must be under the pres-
ent state of things. They could not take for
granted what might or might not be done by Con-
gress; and before Conjrress could decide, they must
have information which tbey do not yet possess.
He who, under present circumstances, attempted
359
HISTORY OF CONGRESS.
360
H. OF R.
Internal Taxes,
December^ IdOl.
to say to what length our retrenchments would go,
and what taxes we could spare, might indeed be
called a prophet.
We ought not) said Mr. E., to stir the public
sensibility improperly or prematurely. By excit-
ing that sensibility before we had determined how
to act in future, impressions may be raised which
we shall not be able to satisfy.
Mr. Shilie concurred in opinion with Mr. E.,
and moved, as the best mode of disposing of the
subject, that the Committee rise.
Mr. Griswold declared himself against delay.
He knew not why the House were not prepared
to decide immediately. The President had intro-
duced the subject, and if any sensibility had been
excited, it must be ascribed to him, ana not to us.
Nor did he think that any ill effects would flow
from attracting the public attention. The Presi-
dent did not know, when he addressed us, that we
would be for a reduction of the expenses ; yet,
thinking as he did, it was highly proper in him to
giye his opinion to the House. So proposed to
us, it would exhibit a want of respect to that Ma-
gistrate not to take it up immediately. Not to act
upon it promptly would be subversive of the na-
tional tranquillity after the attention of the public
had been directed to it.
Mr. Smilie had thought the gentleman from
Connecticut was too well acquainted with the
proceeding of that House to say that the Com-
mittee of Ways and Means were prepared to act
upon this subject. Did they know now far we
would reduce the Army, the Navy, or the Judi-
ciary ?
Mr. Varnum hoped the Committee would rise.
Any disposition of the subject was at present pre-
mature. As to the calculations of the Secretary,
alluded to, they were made from the existing rev-
enue, and all his deductions were made therefrom.
The President had taken another view of the sub-
ject. Contemplating the probability of a reduc-
tion in our expenses, he had stated that, in such
event, we could dispense with the internal taxes.
But whether the contemplated reduction could be
made, the House were not prepared to say. Of
one thin? he was sure, that not a single necessary
tax would be abandoned.
Mr. Dana said, that more than three weeks
have elapsed since the President's communication
has been laid before us, and, during that time, a
sense of decorum has not induced us to take up
one of the most important parts of it. He cer-
tainly agreed with gentlemen that we ought to
take up the subject and decide for ourselves. If
we concur with the President, we shall repeal the
laws; if we do not concur, we may, it is true, risk
our popularity by opposing so favorite a measure
with the people. But, placed as we shall be be-
tween popularity on the one hand, and duty on
the other, as honest men we should do our duty.
But certainly it is our duty now to examine the
subject. Grant that the reduction in our expenses
may extend to a million, though scarcely half that
sum could be hoped for ; still the question remains
what taxes shall be diminished. He could not,
for his part, feel all that horror of public sensi-
bility that had been portrayed by the gentleman
from Massachusetts. What have we to fear, sup-
pose we interfere with that sensibility 1 If we do
so in the discharge of our duty, he was perfectly
willing it should be excited ; nay, it would be use-
ful to the people themselves.
Mr. EusTis was perfectly ready to naeet the
public sensibility, whether for or against us. We
had already tried it both ways. He was much
pleased with the respect professed by gentlemen
for the public sensibility, and also for the commu-
nications of the President. But there were parts
of those communications, which, notwithstanding
the impatience of gentlemen, they would not be
displeased at laying unacted upon, not merely
three weeks, but three months.
Mr. Bataro did not expect an opposition Co his
motion from the quarter from which it came ; for
he had a right to expect as much deference to the
President from the opposite, as from his own side.
For his part he felt no terrors at meeting the
whole, or any part of the President's communica-
tions. Whatever he recommended that was right,
he would vote for, and whatever was wrong, he
would oppose. Though his former habits had
led him to cherish a respect for the President, of
which he did not repent, yet he felt no servility
that would lead him to repress an expression of
his sentiments.
A gentleman from Pennsylvania had talked
about reducing the Army, the Navy, and the Judi-
ciary. But there were other expenses which the
gentleman might have dwelt on. Why silent on
the Legislature ? Let us reduce the length of our
sessions. It did not appear consistent in that gen-
tleman to strike at the Judiciary, and other de-
partments, and leave untouched whatever affiected
nimself.
Mr. Ranoolph did not desire to occupy much
of the time of the Committee, as be thought it
immaterial whether the Committee rise or not
But he wished, for the information, and perhaps
for the satisfaction, of the gentleman from Mas-
sachusetts, to state that, among other members, he
was one who had not decided whether Goran-
ment could dispense with the internal taxes. He
hoped, and was inclined to believe, that they might
be dispensed with. The Secretary of the Treas-
ury had expressly stated that part of his report
was speculative, viz: that part which inferred the
effects of peace. The correctness of the opiaion
of the Secretary on this point must deciae the
House as to the propriety ot giving up these taxes.
He was one who, though he did not think a state
of peace would materially affect the revenue, had
not decided whether a reduction of the public im-
positions in this or that species of revenue should
oe made. He noticed these things, to prevent an
impression being made on the public mind that
the House were for precipitating a decision. As
to the public sensation, he felt no alarm. He
knew that our measures must depend upon the
reductions we shall make.
Mr. R., for these reasons, was against any deci-
sion now; and had the gentleman from Kentucky
pressed his motion yesterday, he was prepared to
361
HISTORY OF CONGRESS.
362
Jamuary, 1802.
Judiciary System,
H. opR.
move a postponemeDt of it. In the mean time,
there were other important topics involved io the
Message that might be referred and acted upon.
Mr. Dana presumed that the honorable gentle-
man from Massachusetts had don€ him the honor
of alluding to him in his remarks. He was not
very solicitous that thesubiect should be inquired
into, but since it was brought up, he must say that
nothing short of the talents of the honorable gen-
tleman could furnish a semblance of reason for
not going immediately into the inquiry. That
gentleman errs egregiously if he imagines that I
can dread an investigation of any point involved
in the President's ^^ssage. He would add, that
whatever his particular opinion might be of the
person to whom had been confided the Govern-
ment of the nation, it became him only to see in
him the First Magistrate of the country, and to
treat him with correspondent respect, and to see
in what he did. not the man, but the measure.
The question was then taken on the Committee
rising, and lost — yeas 29. nays 48.
The reference to the Committee of Ways and
Means was then carried, both in Committee and
in the House, without a division.
The House adjourned till Monday.
Monday, January 4, 1802.
William Barry Grove, from North Carolina,
appeared, produced his credentials, and took his
seat io the House.
Ordered^ That Mr. Milledqe be appointed to
the Committee of Ways and Means, in the room
of Mr. Dickson, who is sick and unable to attend.
Petitions of sundry aliens residing in the county
of Lancaster, in the State of Pennsylvania, were
presented to the House and read, respectively
praying a modification or repeal of the act of Con-
gress, passed the eighteenth day of June, one thou-
sand seven hundred and ninety-eight, entitled
"An act supplementary to. and to amend, the act,
entitled '^ An act to establish an uniform rule of
naturalization, and to repeal the act heretofore
passed on that subject.'' — Referred to the com-
mittee appointed, on the fifteenth ultimo, to pre-
pare and brin^ in a bill or bills for a revision and
amendment of the laws respecting naturalization.
The Speaker laid before the House a letter
from the Secretary of the Navy, enclosing a re-
port from the Commissioners appointed under the
act, entitled " An act for the better government
of the Navy of the United States," passed the
twenty-third of April, one thousand eight hun-
dred, relative to the proceedings of the Board since
their last report, dated the twenty-ninth of No-
vember, one thousand eight hundred ; which were
read, and ordered to lie on the table.
Tne Speaker laid before the House a letter
from Samuel Dexter, late Secretary of War, pray-
ing to be indemnified in the case of a suit now
pending against him in the capacity aforesaid, in
the court of the United States for the District of
m^olumbia, on account of a contract entered into
with a certain Joseph Hodgson, in behalf of the
'United States, for the rent of a house in the City
of Washington, as a War Office, in the year one'
thousand eight hundred, and which, whilst occu-
pied as aforesaid^ was consumed by fire.
Ordered^ That the said letter be referred to
Mr. Griswolix Mr. Hanna, Mr. Dennis, Mr.
EusTis, and Mr. Nicholson, to examine and re-
port their opinion thereupon to the House.
The Speaker laid before the House a letter
from the Secretary of the Treasury, accompany-
ing his report on the memorial of John Hobby,
late Marshal of the District of Maine, referred to
him by order of the House, on the fourteenth ul-
timo; which were read, and ordered to lie on the
table.
The Speaker laid before the House a letter
from the Secretary of the Treasury, transmitting
an account of «the receipts and-expenditures of the
United States for the year one thousand seven hun-
dred and ninety-nine; also, tables exhibiting the
accounts of the collectors and supervisors of the
revenue for the same year; which were read and
ordered to lie on the table.
JUDICIARY SYSTEM.
Mr. RANnoLPH moved that the House should
go into a Committee of the Whole on the state of
the Union, with the view of submitting three res-
olutions to the Committee, viz:
^ Regohedy That it is expedient to inquire whether
any, and what, alterations should be made in the Judi-
cial Establishment of the United States.
" Resohedy That provision ought to be made for the
impartial selection of juries.
" Ruolvedj That it is expedient to inquire whether
any, and what, reductions can be made in the civil ex-
penses of the Government of the United States."
The House accordinglv went into Committee.
Mr. Bayard presumed an agreement to these
resolutions would, in their present shape, meet
with no opposition. It was impossible to deter-
mine what shape they would ultimately assume.
The Judiciary system was doubtless susceptible of
amendment, and if any proper amendments should
be proposed, he would concur in their adoption.
With respect to the second resolution, thoueh he
did not know that there was any necessity tor al-
tering the mode at present practised of selecting
juries, not having heard of any complaints under
It, yet, as the resolution only led to an inquiry
into the subject, he would not object.
With regard to the last resolution, it was one
in which we must all concur. The object, if at-
tainable, would be extremely grateful to all of us.
The three resolutions were agreed to without a
division. The Committee then rose, and reported
them to the House.
On the report being taken uj), Mr. Randolph
moved that the consideration oftlie two first reso-
lutions be postponed till the third Monday of Jan-
uary.
Mr. Bayard hoped the motion for postponement
would not prevail. The propositions were abstract
ones, leading to inquiry, and the sooner they were
acted upon the better. The mode pursued by the
gentlemen from Virffinia, if his simple object was
to give notice, was the least happy that he could
363
HISTORY OF CONGRESS.
364
H. OF R.
Judiciary System,
January, 1802.
have devised, for it gave to gentlemen no oppor-
tunity^ to prepare themselves, as they were totally
unacquainted, in the present stage of the business,
as to what would be the alterations proposed. If
a committee were now appointed, they would
have time to deliberate on a subject of the utmost
importance — one so complicated as to require great
attention. When their report was made, he would
be one of those who would ask from the candor of
the House time to consider it.
Mr. Randolph said, he was at all times willing
to accommodate gentlemen of every political de-
scription on proper occasions. Apprehending that
his resolutions, if taken up in the House, would
give rise to discussion, he had moved for their
postponement, from a wish not to interfere with
the desire of the gentleman from Pennsylvania,
and other gentlemen, to acton the appoitionment
bill. As his motion for postponement appeared
likely to be itself productive of discussion, by which
the time of the House would be exhausted, and
the means he used defeat the end he had in view,
he would withdraw his motion.
The House then agreed to the resolutions with-
out a division.
Mr. Randolph moved the reference of the two
first resolutions to the same committee.
He said, in reply to the gentleman from Dela-
ware, that he maae the motion respecting juries
not because any complaint did at present exist of
the exercise of the powers under which jurors
were selected, but because they had not long since
existed, and because in similar circumstances they
might a^ain exist. He was glad the gentleman
from Delaware had no reason to complam of their
present abuse. But this was no security against
the future.
Mr. Batard said that be had spoken as he had
done, not for the purpose of expressing any opin-
ion that any abuse respecting juries bad been re-
cently removed under the present state of things;
but to state that he had never heard of any com-
plaints on this subject in the part of the Union
from which he came; and he had particularly
alluded to the mode of designating jurors in his
State, which was by ballot. But. if there were
complaints in other parts of the Union, he would
co-operate in any means that could be devised
for removing them.
Mr. Smilie said, that since the gentleman from
Delaware had introduced the subject, and had
declared that no complaints existed, he would say
that complaints had existed, that just grounds for
them existed, and that they had been expressed in
the loudest tone. And he would appeal to the
gentleman from Delaware whether any man could
be safe who was at the mercy of a marshal, who
was the mere creature of the President.
Mr. Bayard. — While man continues as he is,
there will be complaints on this subject. We are
divided into parties. The people as well as the
President must belong to one side or the other ;
and whether we have sheriffs chosen by the peo-
ple or marshals appointed by the President the
evil will still exist. He had no objection, if it were
the wish of gentlemen, that the marshals should be
appointed by the people; though we know that
the people are as apt. nay. more apt, to be infected
with violent political feelings than an Executive
officer.
Mr. Randolph said, that without desiring to-
exhaust the time of the House on a point where
there was no difference of opinion, he could not
permit the observation of the gentleman from
Delaware to pass unnoticed; that an officer, hold-
ing a lucrative office, appointed by the President,
and dependent upon his will, is as independent as
a sheriff, elected in some States annually by the
people, and in other States appointed in a manner
calculated to insure his independence. He would
instance the State of Virginia, in which the sher-
iffs were nominated by the justices of the county
courts, who. it was understood, were to hold the
office of sheriff in rotation. Will the gentleman
say that these men, who are independent of the
pleasure of any man, are liable to be made the
same tools, with officers who hold their appoint-
ments nt the absolute will of one man ?
Mr. R. would further say, that the remark of
the gentleman from Delaware, that the existence
of no complaints had ever come to his ears, had
excited his extreme astonishment. In North Car-
olina, he believed, no legal jury had been selected
since the establishment of the Federal Govern-
ment. In that State, in the State courts, all juries
are first selected in the inferior courts, and then
sent to the superior courts. He would ask, how,
under these circumstances, a jury could be struck
in a federal court in that State agreeably to law?
In Virginia and Pennsylvania the independence
of sheriffs is secured, therefore, no restrictions are
imposed upon them in selecting juries ; whereas,
in the federal courts the Marshal is the abject
creature of the Executive — and yet we are told
the security is the same ! Mr. R. did not wish ta
consume the time of the House; but when views
are taken by gentlemen calculated, either as to
fact or sentiment, to lead the public mind astray,
if other gentlemen did not. he would invariably
notice them.
Mr. Bayard desired to explain. He had not
meant to contend that sheriffs chosen for three
years by the people were as dependent as similar
officers appointed by the President. He had al-
luded to the effects which flowed from a marked
division of parties. We were in all events subject
to that evil. It was a truth that men deeply in-
fected with party were more apt to be chosen by
the people than by an Executive magistrate ; be-
cause the people felt more strongly a degree of
political fanaticism.
After some further debate, it was determined to
refer the two first resolutions to a committee of
seven, and the last to a committee of five mem-
bers.
Ordered^ That Mr. Nicholson, Mr. John
Taliaferro, Jr.. Mr. Goddard, Mrl Rutledge,
Mr. Israel Smith, Mr. Henderson, and Mr.
Bailey, be appointed a committee, pursuant to
the first and second resolutions.
Ordered, That Mr. Bacon, Mr, Grove, Mr. El-
mendorf, Mr. Hemphill, and Mr. Abram Trioo^
365
HISTORY OF CONGRESS.
366
January, 1806.
Apportionment Bill.
H. OP R.
be appointed a committee, pursuant to the third
resolution.
APPORTIONMENT BILL.
The House again resolved itself into a Commit-
tee of the whole House on the bill for the appor-
tionment of Representatives among the several
States, according to the second enumeration.
Mr. Bayard moved to strike out the ratio of
33,000, for the purpose of substituting 30,000.
He was in favor of this last ratio, because it was
the one within our Constitutional limits which
left the fewest unrepresented fractions, and because
he thought it very important that that ratio should
be adopted, which would entitle I he smaller States
to at least two Representatives ; that in case one
of the Representatives were sick, or unavoidably
absent, the State might not go unrepresentea.
Besides it was of great moment to a State, partic-
ularly to the. State which he represented, that its
Representative should havca coadjutor with whom
to consult on its interests.
The ratio of 33^000 would be peculiarly severe
in its operation on Delaware, as it would leave an
unrepresented fraction of 29,000.
The ratio of 30,000 was still more to be prefer-
red on general than on local principles. He had
always been for increasing the strength of the
Government of the United States; no further, it
was true, than to enable it to protect itself from
subversion or depression by the unconstitutional
encroachments or the States. He might in some
measure have derived these views from the rela-
tion in which he stood to a small State; for it was
certain that the smaller States had a deeper inter-
est in the Federal Government than tne larger
States ; as, without the protection of that Grovern-
ment, they might be overwhelmed by the larger
States.
He never had believed that the strength of the
Government was to be increased by extending the
power of the Executive. But he believed its
strength would be increased by augmenting the
numbers of that House, which would invigorate
the affections of the people ; and he believed that
by thus increasing the energies of this body, more
power would be conferred on the Government by
an addition of ten members, than would be con-
ferred by giving it an army of 10,000 men.
The gentleman from Virginia had denied that
this House was the representative of the people,
affirming it to be the representative of the States.
Mr. B. hoped, if he misinterpreted his ideas, that
the gentleman would explain.
Mr. Randolph would explain. He had said
that this House was not the representative of the
people over the United Stales^ out the representa-
tive of the people of the individual States in their
sovereign State capacities.
Mr. Bayard considered the opinion of the gen-
tlemaa incorrect, and thought it extremely import-
ant that on this point correct ideas should be en-
tertained. He viewed the representation in that
House as national, and he considered himself as
much the Representative of Virginia as the gen-
tleman himself. In this House we have no other
relation to the States than that which regards
our origin. We form a great national body, de-
signed for national purposes ; and as soon as we
come here we lose our State characters. The
Government is of a mixed kind. In the Senate
the States are completely and exclusively repre-
sented. But on this floor there subsists no relation
to Slates. We are solely related to the people,
and our representation is in proportion to the
numbers of the people.
There was one argument to him conclusive. A
majority of Representatives may bind a majority
of States ; and the Representatives of three or four
States, forming that majority, may bind the whole
Union.
Mr. B. knew that the arguments he had ur^ed
had been met by the expression of a fear that tni.T
body might gain an influence that would outweigb
the several States; and that this Government
might become too strong for the governments of
the States. But his fear was that the governments
of the States might become too strong for this
Government. What reason was there to appre-
hend danger from the augmentation of the mem-
bers of this House from about one hundred and
forty, of which it would consist according to the
ratio of 33,000, to one hundred and fifty-four, or
which it would consist according to that of 30,000?
Can the States apprehend any danger ? For in-
stance can Virginia entertain alarm? When at
present she sends here nineteen members, and has
m her own legislature from one hundred and'
ninety to two hundred members; and when, ac-
cording to the two ratios proposed, she will send
either twenty-two or twenty-four members 1 Is it
conceivable that the confidence of the citizens of
Virginia can be shaken in her own State repre^
sentation, by this inconsiderable addition to her
federal representation?
Mr. B. concluded by recapitulating his argu-
ments in favor of the ratio of 30^000.
Mr. Randolph considered this (question as in-
volving two points: The one, which was of in-
ferior magnitude, whether the representation upon
this floor should be increased, by a few members,
with a view to the relative weic^ht of this or that
State ; the other, which was of the last import-
ance, whether it should be so increased for the pur-
pose avowed by the gentleman from Delaware, of
augmenting the power, as yet too small, of this
Government, and of course so far diminishing tliat
of the States. Thus the Question, in iLself a mat- .
ter of comparatively small moment, becomes of
serious consequence as a test of political opinion.
I wish to put it upon that issue, to see whether a
majority of this House are disposed to advocate
the position of that gentleman. Without enter-
ing into the question, whether the power devolv-
ed on the General Government by the Constitu-
tion, exceeded that measure, which, in its forma-
tion, he would have been willing to bestow, he
had no hesitation in declaring that it did not fall
short of it ; that he dreaded its extension, by what-
ever means, and should always oppose ineasures
whose object or tendency it was to effect it. The
gentleman tells you, sir, that from the number of
367
HISTORY OF CONaRESS,
368
a OF R.
Apportionment Bill.
Ja^dary, 1802.
its connexions with the people, the Stale govern-
ments possess their coondence in a high degree ;
that there is danger of an abuse of this confi-
dence; that through it the large States may
thwart and coptrol the General Gorernment ; that
it then behooves the small States to come into the
measure which he proposes, from a consideration
that it will operate, in that way, to reduce the
-4)ower of the large States. An increase of repre-
sentation, we are told, will do more towards in-
-creasing the power of the General Government
than a military force. But when military and
naval preparations and every other expedient de-
Tised K)r carrying that power beyond the Consti-
tutional limit has failed, I trust that this House is
not to be sent on that forlorn hope, at the instance
of those whose interest it is in the distribution of
power between the several branches of this Gov-
ernment, to transfer as much of it as possible to
the other branches ; who have, in the pursuit of
this system, contended that we did not possess a
discretion over the public money, but were bound
to appropriate it on requisition from the Execu-
tive.
This House, I trust, is not become an en-
gine in such hands for engulfing into the vortex
of the General Government the powers of the
States, and then settling the distribution of those
powers. They will recollect that the exercise of
this power, to oe wrested from the States, is to be
shared by co-ordinate branches of the Govern-
ment, where the weight which regulates this body
is felt, either partially, or not at all ; I mean the
population of the States. If a consolidation into
one great National Government is to take place ;
if ever the State governments are to be set aside ;
if the powers of this Government are to extend
beyond objects federal in their nature, let us not
suppose that the people of the United States
would freely consent to the exercise of those pow-
ers by a Government which, if viewed as the
Government of an individual sovereignty, and
not as that of a number of confederated States,
contains principles which are highly objectiona-
ble; which are even repugnant to our received
truths respecting the nature of Government. For,
sir, I hold that if there be a principle fixed in pol-
itics, it is that the people of every country should
have their equal weight in the direction of their
Government. But suppose the State governments
gone, or existing as the mere skeletons of power,
while this Government, in high political health
and vigor, is in the exercise of every right belong-
ing to an individual sovereignty. Look to the
distribution of those powers ; see by whom they
are to be exercised. In this branch alone you will
find the Republican character ; in the other it is
not to be seen. There, is that principle virtually
acknowledged which gives to Old Sarum and
Newton a representation equal to that of London;
a principle which is believed by some essential to
the existence of that well-ordered Government, or
gerhaps of any other which they are willing to
estow upon man ; the principle that the govern-
ors are not to be under the complete control of the
governed; in other words, that the majority
ought not to govern. In the appointment of the
Executive the same spirit prevails, although some-
what modified. When a Government thus con-
structed is to exercise the power, our surprise is
somewhat diminished that those who would pos-
sess so undue a share of that power, were it once
consolidated, should feel disposed to augment the
influence of the Government; nor that those who
would be dispossessed, in that event, of their full
share in the direction of affairs, should be equally
anxious to restrict it. But the Committee will
perceive the wide distinction between this Gov-
ernment and that of an individual State. The
one is simple, and all parts of it are referable to a
great principle ; the other is the creature of com-
promise, instituted for Federal purposes, to which
the States were incompetent. The proposed de-
volution of power was so great, so intimately af-
fecting the wealth and population of the States, as
to excite in the large States an inviqcible repug-
nance to part with it, unless its exercise was in
some measure regulated by the quantum of the
population and wealth. Hence the origin of this
House, elected by the States, in the ratio of popu-
lation and wealtn ; while in the Senate the sove-
reignties, as such, are allowed an equal represent-
ation, and the influence in the appointment of the
Executive is compounded of these. And even this
power of choosing the Chief Magistrate of the
Union, is, in a certain event, which has already
occurred, and which will be memorable as long
as this Government endures, to be exercised by
this House, voting not so that the delegations shad
represent tne population and wealth of the States,
but their sovereignty only. Did not the gentle-
man from Delaware feel his weight on this floor
to be equal to that of nineteen Delegates from
Virginia ? This spirit of compromise, sir, I con-
ceive to be the key of the Government. It is the
principle which pervades it throughout and re-
solves every question which arises on its nature.
This shows, sir, that it is to exercise Federal pow-
ers, leaving to the States the regulation of inter-
nal concerns. For this object, it is constructed
so as to compose the jarring interests of the States.
Extend it further, let it embrace objects for which
it was not designed, let it trench upon the powers
of the States ; make it a National Government, in
the sense contended for. and it becomes a Govern-
ment vicious in its organization, sin#e the reasons
for that organization cease to apply whenever it
ceases to be a Government of States, and becomes
a Government of the people in the aggregate. And
yet it is affirmed that we are not the Representa-
tives of the States — that is, of the people of those
States in their respective sovereign capacities —
but of the aggregate of the people of the United
States, in their national capacity. If that be the
case, should we not apply the ratio to the aggre-
gate of persons entitled to representation in the
United States, and not to those portions in the
respective States? If this be true, where is the
Federal character of this Grovernment? And yet
the gentleman affirms that he is the Representa-
tive as much of Virginia as Delaware, and the
Representatives of the first are equally the Rep-
369
fflSTORY OF CONGRESS.
370
January, 1802.
Apportionment Bill.
H. opR.
resentatives of the last. Wherefore ? Because
his acts are to bind VirgiDia as well as Delaware.
If this proved anything it would prove that the
Senators of each State represented all the States,
for certainly their acts are binding upon them.
But if the gentleman does represent Virginia, cer-
tain I am that I do not represent Delaware ; I am
not elected by the people of that State ; I receive
no credentials from it to this House ; I hold not
myself responsible to it. I know it not on this
floor, except through the medium of its legitimate
organ, through which it speaks to us, its Repre-
sentative. Upon this view, sir, what becomes of
the complaint that the gentleman is destitute of a
colleague with whom he may consult; passessing
as he does the whole Committee for his cot-
leagues ?
As another motive to accede to his proposition
we are told that it will increase the relative
weight of one or more small States. I hope I
shall be pardoned for observing that this motive
has been selected with singular mfelicity, since it
is addressed to the large States, who may. with-
out improper imputation, be supposed of opinion
that the weight of the small States is already
sufficiently felt, and that it does not behoove
them to give their aid to increase that weight in
this branch of the Legislature, to the comparative
diminution of their own, to the utmost limits
which the Constitution will permit.
Mr. R. concluded by observing, that he thought
the House would be sufficiently numerous, at the
ratio contemplated by the bill, for all Federal pur-
poses; that to increase the representation to meet
the views of the gentleman from Delaware, would,
in their fullest extent, were it practicable, sup-
plant the State governments. That the difference
of five or ten members more or less on that floor
"wask) itself unimportant. That if the ratio had
been fixed originally at thirty thousand he should
have felt little disposed to increase it, but he would
not carry it back merely to answer the purpose
for which it was fixed at thirty-three, the accom-
modation of certain States — much less with a view
to decrease the influenoe of the State govern-
ments.
Mr. Griswolo had at the first been for a high-
er ratio than that of 33,000 ; and he would still
be in favor of it did there appear any chance of
its success. But as the dispute seemed to be be-
tween the ratios of 33,000 and 30^000, and as the
former was the worst possible ratio that could be
adopted, as it left the greatest aggregate of frac-
tions, and operated with thegreatest severity upon
the small States, he should be for that of 30,000
in preference.
He had been surprised at the remark which had
fallen from the gentleman from Virginia, that the
members en the floor of this House were not the
Representatives of the people ; and he was more
particularly astonished at this remark coming from
the large States. He deemed the principle on
which it was founded a dangerous principle, one
subversive of the Gtovernment. and in the face of
the Constitution, one which called upon every
friend of the Constitution, and of the national
harmony, to repel it, as calculated to confer on the
large States all power.
What does the Constitution say: "We the
people of the United States," (not of Virginia,
&c.,) *'form a Government." It is afterwards
declared to be established for the United States.
It is the Constitution of the people of the United
States. It constitutes a Senate and House of
Representatives. Whose Senate and whose House
of Representatives, he would ask? The Consti-
tution would answer, not of the particular States,
but of the United States. Is not this the plain
reading of the Constitution ? Can any gentleman
say, he represents only Pennsylvania, or Virginia?
No, sir, he comes not to consult the interest of
Pennsylvania, or Virginia, but of the whole Uni-
ted States.
If the opposite principle be adopted, viz: that
members are the Representatives of the States
from which they come, then are the efiects obvi-
ous. A combination of the Representatives of
four States, composing a majority of this House,
may overwhelm the whole interests of the Uni-
ted States. It had been said out of doors that
such a prospect existed. He had not believed
it. He did not wish still to believe it ; and he
hoped the Committee, seeing the danger of such
an impression, would avoid whatever went to
countenance it.
Mr. Bacon. — The question before the Commit-
tee is an interesting one, and gentlemen who have
risen to speak to it, appear to feel it to be such.
There is reason to believe that whenever the ques-
tion is determined, it will be done on uniform and
moderate principles. It is to be hoped that few,
if any, wilt be influenced to act by a fondness for
extremes. Because I cannot be gratified bv the
adoption of one extreme, I will not rush to the op
posite one.
A principal reason that is offered in favor of the
amendment seems to be, the accommodation oi
Delaware; it is to relieve that State from alar^e
fraction, and to give her two members in the
House of Representatives.
I would pay the same respect to the State of
Delaware that I would pay to any other State of
the Union in like circumstances. The reason
that is urged for striking out thirty-three, with a
view to insert thirty, so far as it relates to the ac-
commodation of Delaware, must; as I conceive,
be predicated either on the principles of the Con-
stitution, or on the principles of equity.
By the Constitution thev are entitled to two
members in the Senate. This, I believe, is about
five times their equal proportion of representation
in that branch of the Legislature, if the calcula-
tion was to be made either on their numbers or
their property. But, in answer to this, it is said,
and I readily admit that the answer is a just one :
This is a ri^ht which they hold by mutual com-
pact, that IS, by the Constitution ; and therefore
ought not to be taken into consideration in deter-
mining the present question.
On the other hand, it must also be admitted that,
by the same Constitution^ they are entitled to that
proportion of representation, and no more, in the
371
HISTORY OF CONGRESS.
372
H. OP R.
Apportionment Bill,
January. 1802.
other branch of the Legislatare, which may fall
to them on any given uniform ratio which Con-
gress are authorized and see fit to adopt. This
position is no less equitable, sound, and rational,
than the other; consequently, no argument can,
as I conceive, be drawn from the principles of the
Constitution in favor of the proposed amendment,
as it may affect the particular case of Delaware.
Again : If leaving the general principles of the
Constitution we recur to mere principles of equi-
ty, I believe the result will be nearly the same in
both cases.
On mere principles of equity, I suppose it will
be admitted that each State in the Union is enti-
tled to a representation in Congress proportioned
either to the number of its inhabitants, or to what
it contributes to the support of the Government,
which are considered as amounting to nearly the
same thing. Calculating on these principles, then,
the State of Delaware, even on the present ratio
of 33.000, will have nearly one third more than its
equal proportion of representation in the Con-
gress. I can see no reason, therefore, to alter the
present ratio, and thereby to create an annual and
permanent expense of twenty or thirty thousand
dollars, only &r the sake ot lowering a fraction
and thereby adding one more Representative to
the State of Delaware ; and especially when I
consider that, as the ratio now stands, she has
more than her full proportion of representation in
the Legislature; and that, whether the calcula-
tion is made on mere principles of equity, or on
the common or the most rigid principles of the
Constitution.
It has also been mentioned, as a reason for low-
ering the present ratio of representation, that the
extent of election districts will thereby be con-
tracted,, and that, in this way, an opportunity will
be furnished for Electors to become acquainted
with the sentiments and conduct of their Repre-
sentatives, so as not to be under the necessity of
acting wholly in the dark in the execution of the
right of suffrage.
I am apprehensive that recent experience has
taught us that it is not necessary at this day to
lower the ratio, for the purpose last mentioned.
From a uniform practice upon the present ratio,
which has now become familiar, and the repeated
elections which have taken place under it, tne ob-
ject mentioned seems to have been already attain-
ed. It is obvious, I suppose, that a very consider-
able change has latelv taken place in the political
sentiments of our fellow-citizens throughout the
United States. This change of sentiment is sup-
posed by many to be for the better, and that it has
been effected by the diffusion of information
among the people, and a more thorough and com-
petent acquaintance with the sentiments and
characters of their Representatives and candi-
dates. Those, therefore, who believe that such
interesting and salutary effects have occurred from
a uniform practice on the present ratio, and that
the effects of the same practice are meliorating
from year to year, and from one election to ano-
ther ; such, I say, who believe this to be our case
while practising on the present ratio, cannot con-
sistently, as I conceive, wish to have it altered
with a view to try a different one. since this has
been found to answer the end desired.
There are others, no doubt, who verily believe
that the former days were better than these, and
that the elections that were made on the present
ratio, when it bore a much greater proportion to
the whole number of citizens than it now does,
were more wisely conducted, and that they were
attended with much more salutary effects than
those are which lately have been made. Those
who are of this opinion, J must suppose, cannot
consistently wish to lower the ratio, so that it may
bear a still less proportion to the whole number o(
citizens than it even now does, for this would tend
to enhance and not to remedy the evil complained
of. Let the subject, then, be viewed in either of
those lights which have now been mentioned, and
I cannot see but that if we act consistently, as I
presume we shall, that it will be almost the unan-
imous opinion of the Committee that it is not ex-
pedient to adopt the motion, and to strike out the
number 33, with a view to insert 30.
It has been suggested that we ought to increase
the representation, because we shall thereby in-
crease the confidence of the people in the Govern-
ment. I suspect this to be a reason that exists in
theory rather than in fact. So far as my observa-
tion has extended, I have not found that the confi-
dence of a people in their government is always
in proportion to the number of those who admin-
ister it ; nor yet that the confidence which is re-
posed in the different departments of the same
Government is in exact proportion to the num-
bers which compose those departments respect-
ively. How is it in our own Grovernments,
both National and State? I need not descend to
a minute comparison ; I will only observe that by
showing a disposition to increase our own num-
bers beyond what is necessary, would, in my opin-
ion, tend rather to diminish tnan to increase the
confidence of the people in their Government.
Mr. Davis. — Two ratios are brought to our
view, those of 30,000 and 33,000. The former
leaves unrepresented fractions amounting to 15,-
700 ; the latter leaves fractions amounting to 221,-
000. It would be most equitable to adopt the for-
mer but for its operation^upon a number of States.
Six States, of wnich Kentucky is one, will be pe-
culiarly affected by it. They will relatively lose
their portion of representation in a great degree.
They will lose as many members as the ten re-
maining States, whereas by the ratio of 33,000
the evil will be^ as to those states, greatly dimin-
ished. For this reason, notwithstanding the un-
pleasant situation of Delaware, Mr. D. must vote
for the ratio of 33,000.
Mr. Macon never had considered this as a con-
solidated Government, which might be inferred
from the arguments of some gentlemen. The
Constitution established a directly opposite prin-
ciple. It declared the Constitution to be estab-
lished for the United States, not for the people ;
and in all its parts it bore a Federal complexion.
In the arffument& made use of when it was adopt-
ed, it had always been declared by its friends to
373
HISTORY OF CONGRESS.
374
January, 1802.
Apportionment Bill,
H. OP R.
be Federal; and the Representatives were partic-
ularly designated as the Representatives of partic-
alar States.
Mr. M. did not think 30,000 too small a ratio.
He wished the people to know their Representa-
tives, and the more numerous the last were, the
greater was the chance of this knowledge; nor
did he think that the enlarged representation
would augment the expenses of the Government. ';
The House knew he had never been prodigal of i
public money. He believed we should save money
by an enlarged representation, for the public ex-
penses did not proceed so mucn from the compen-
sation rendered to the members of this House, as
from the adoption of improper measures, which an
enlarged representation would defeat.
With regard to th9 abstract arguments made,
did not the dispute about different numbers show
that we are all the Representatives of particular
States? Else, why take Delaware as the mini-
mum and Virginia as the maximum ? This dem-
onstrated the question to be one entirely of calcu-
lation.
Mr. S. Smith had listened to the discourses of gen-
tlemen on the abstract question introduced, and yet
he had found that every fi^entleman, before he sat
down, proved himself to be the Representative of
a particular State, after all that he bad said. The
truth was. the point was one altogether of calcu-
lation. The gentleman from Connecticut had
been strong for 40,000; and now« after making
his calculation, he agrees with his friend from Del-
aware in preferring 30,000 ; not, perhaps, because
it peculiarly benefits Connecticut, but because it
benefits the party with whom he acts. Let us
view the gentleman from Delaware, and we see
him pursuing the interests of Delaware, and caring
nothing for other States, and thus he shows us
that he is the Representative of the State of Del-
aware. The gentleman from North Carolina, here-
tofore always economical of the public money, is
for once prodigal in wishing an enlarged repre-
sentation; and why? Because he thereby will
promote the interest of his State. This was ]>er-
fectly fair and right; and if he, Mr. S., were sim-
ilarly situated he should act in the same way.
But, Maryland happened to be differently situated.
The ratio of 30,000 would leave a fraction to her
of 29,000. Could it, therefore, be expected that
any member of that State would be for that ratio ?
Mr. Smilie observed that he had originally
been in favor of the ratio of 33,000, from the infiu-
ence of general principles. But since one gentle-
inan had shifted from 40,000 to 30,000, from con-
siderations of policy, and other gentlemen seemed
to feel the same motives, he thought it was high
time for each State to take care of itself. He
would, therefore, vote for the ratio of 33,000.
Mr. Dana said he would not question the purity
of the principles of the gentleman firom Maryland
or Pennsylvania. Yet he must say that, however
honorable to the frankness of character of theg^en-
tleman from Pennsylvania, was the avowal of his
sentiments, yet it did no honor to the principles of
equity wbicn ought to govern that House. As to
the question of confidence or consolidation, he
deemed it a mere question of words. It was right
that we should consult the interests of our con-
stituents, because we were better acquainted with
them than with those of the other States. But
that we should exclusively consult them, to the
disregard of the general principles of justice, of
the great interests of the United States ; sucli a
principle ought not to be tolerated. Though the
question was. in a great measure, one of calcula-
tion, yet he was astonished at an avoAval of one
gentleman to conform to unjust principles because
another gentleman had in his opinion adopted the
same course.
Mr. D. then went into a detailed comparison of
the different bearings of the two ratios, from
which he was in favor of 30,000.
He then proceeded. The question between the
two ratios is not simply important as it relates to
this House; but as it settles the relative weight of
the States in the election of our two first Execu-
tive magistrates. Just as you diminish the ratio
you increase the weight of the large States ; and
this may be done until you shall give the large
States the entire monopoly of Executive power.
He would not say that the large States were not
entitled to a monopoly of this power. He would
not say that a majority of talents and virtue cor-
respondent to the magnitude of the States, did not
subsist; but until he was sure oi this, he would
not be for conferring a monopoly of power on four
States. Those States being the most important,
it may be thought right to take the Chief Execu-
tive Magistrate from them, and the other chief
ofiicers ; and this may become so much a matter of
course, that it may be deemed injurious to disturb
the established harmony of things. For these
reasons Mr. D. was agamst the ratio which gave
undue weight to the large States.
Mr. EusTis said, there was a sound principle
which applied itself to the elucidation of tnis
question. The present ratio had given general
satisfaction. As to the abstract Questions which
had been discussed, they were wholly immateri-
al. Let us go bacK and view the circumstances
under which this House was organized. It was
so constituted as to afford the people of the United
States an opportunity of expressmg their feelings
and representing their interests. Has any incon-
venience resulted from the ratio of thirty-three
thousand, long since adopted ? Has it not been
recommended by experience ? And will not any
desire to augment the representation be fully sat-
isfied by the increase from one hundred and six
to one hundred and fortv-two? Whether the
number was great or small, he had no idea that
the powers of the House could receive correspond-
ent augmentation or diminution. He believed
that a body of fifty men would not want decision
to oppose unconstitutional encroachments, and
that a body of one thousand would not dare to
transcend Constitutional powers.
Though he fell for the situation of Delaware,
yet, if the principle was correct that the ratio of
thirty[-three thousand would constitute a body
sufficiently large, we must, of necessity, abandon
any particular regard to that State.
375
HISTORY OF CONGRESS.
376
H. OF R.
Connecticut Reserve — Perfect Motion.
January, 1802.
There was another circumstance worthy of
mention. A diminution of power was abhor-
rent to all bodies. If a great increase of the
members of the House increased its power, and a
precedent be now set of greatlv enlarging our
number, it may be followed in future, uotil the
House becomes so large as to render it a nuisance.
The Committee rose, reported progress, and had
leave to sit again.
Tuesday, January 5.
A memorial of sundry aliens, residing in the
city and county of Philadelphia, in the State of
Pennsylvania, was presented to the House, and
read, praying a repeal of an act of Congress, pass-
ed the eighteenth day of June, one thousand seven
hundred and ninety-eight, entitled "An act sup-
plementarv to, and to amend, the act entitled *An
act to establish an uniform rule of naturalization,
and to repeal the act heretofore passed on that
subject;" which was referred to the committee
appointed, on the fifteenth ultimo, to prepare and
bring in bill or bills for a revision and amendment
of the laws respecting naturalization.
CONNECTICUT RESERVE.
A petition of sundry inhabitants of the State of
Pennsylvania, settled on the lands claimed under
grants from the State of Connecticut antecedent
to the trial before the Court of Commissioners
between the States of Pennsylvania and Connec-
ticut, was presented to the House, and read, pray-
ing that the authority of the Supreme Court of
the United States to re-examine and reverse or
affirm a final judgment or decree in the cases pro-
vided for in the 25th section of the Judiciary act,
may be extended or declared already to extend to
•cases of criminal prosecutions as well as of civil
actions; that original and exclusive jurisdiction
may, agreeably to the Constitution, be given to
the proper courts of the United States in all con-
troversies between citizens of the same State
claiming lands under grants of different States;
and that the Supreme Uourt may be empowered,
at their discretion, to direct the trial of sucn causes,
to be holden in districts other than the States in
which the two opposite titles are claimed, (unless
the claimant under the other than that in which
the land is, shall waive the right of trial in a Fed-
eral court,) or that some other adequate relief
may be granted in respect to the disputed claims
of the petitioners for the lands aforesaid.
Mr. GoDDARn moved to refer the petition to the
committee appointed to inquire into the expedi-
ency of making any alterations in the Judicial Es-
tablishment of the United States.
Those who supported the reference were Mr.
OoonARn Mr. Bayard, Mr. T. Morris, Mr. Ba-
con, Mr. Hemphill, and Mr. RuTLEncE.
Those who opposed the reference were Mr.
Smilie and Mr. Randolph.
In support of the reference it was declared that
all petitions couched in decent terms ought to be
referred, else the House would be precipitated into
decisions without possessing correct information ;
that this case was important in its effects upon a
large class of citizens, who had a right to be at-
tended to by Congress; that the controversy to
which the petition related, was of long standing,
and that it became that House to treat the prayer
of the memorialists with respect ; that it was be-
lieved that Congress neither could or would in-
terpose ; ai\d that, if such were the determinatioa
of Congress, expressed after mature consideration^
it would tend more effectually than a present sup-
pression of the petition to deprive the memorial-
ists of any expectations derived from the hoped-for
interposition of the Federal Legislature ; that, in
this result, Pennsylvania was as deeply interested
as the petitioners.
On tne other hand, it was declared that Con-
gress had no power to interfere ; that the ques-
tion was entirely judicial, and had been decided.
by the first judicial authorities of the nation ; that
the rights of Pennsylvania were conclu^tively es-
tablished; and that Congress could do nothing
that would impair them.
A reference at last obtained, by general con-
sent, under the suggestion that the memorial pray-
ed for a revision of the Judiciary System, so far
as relates to the selection of juries.
PERFECT MOTION.
A memorial was presented from Lewis Dupre.
of which the following is a copy :
To the Government of the United States in Congress
assembled.
Dear Frishbs : It has pleased Almighty Grod (for
purposes most extensively benevolent) to discover to
me the principles of the perfect motion, (vulgarly call-
ed perpetual motion,) for which I trust I ^un thankful,
(as, no doubt, every citizen of the saper-eminentlv fa-
vored land of Columbia ought to be,) for the peculiar
blessing.
In prosecuting a suit for the customarily exclusive
pecuniary advantages which the practice of ancient
liberality has established, as the reward of persevering
ingenuity and industry, I meet with difficulties insur-
mountable without the aid of Legislative interference.
I, therefore, trust that your justice and republican-pat-
riotism will induce you to take the subject into consid-
eration, and as speedily as possible obtain, from the
critical casket where it remains deposited, the piecioos
bounty, to effectuate which you hereby possess a prom-
ise of the cordial co-operation of your real friend and
fellow-citizen,
LEWIS DUPRE.
50th day of perfect motion, Jan. 1, 1802.
On the motion to refer the above petition to a
select committee.
Mr. MiTCHiLL said, if there was a case in which
it was proper to decide against the reference of a
petition to a committee, that was such an one. It
was evident on the face of the petition just read,
that it was a strange, disordered composition ; and
the object which the petitioner pretended to have
attained, was contrary to the physical laws of
matter. All experience and all philosophy was
opposed to the notions of the kind contained in
the paper before the House. He hoped there woald
be no reference of such a visionary scheme to any
committee whatever. It was not worthy of the
377
HISTORY OF CONGRESS.
378
January, 1802.
Apportumment Bill.
H. ofR.
National Legislature to give a serious attention
to physical impossibilities.
After some debate about the disposal of the pe-
tition, it was ordered to be referred to a select
committee ; and Mr. Southard, Mr. Lowndes,
and Mr. Mitohill, were appointed.
APPORTIONMENT BILL.
The House aeain resolved itself iAo a Com-
mittee of the whole House on the bill for the appor-
tionment of Representatives among the several
States, according to the second enumeration.
Mr. Bataro nid, he should beg the indulgence,
before the question was taken, of a few observa-
tions is reply to the arguments of the gentlemen
opposed to him. The peculiar interest m the sub-
ject which attached to his State would apologize
for the trouble he had given the Committee. It
bad been said that Delaware ought to be satis-
fied ; that, if she had ground to complain of the
want of a complete representation on this floor,
the equality she enjoyed in the Senate, and her
weight in the election of President, were juster
grounds of umbrage to the larger States. He was
surprised at such an intimation.
The Constitution had settled the political pre-
tensions of the States, and each one had a neht
to insist upon the full advantages which justly oe-
longed to it on Constitutional grounds. Delaware
was satisfied with the Constitution ; but it was
not to be expected she would yield a pretension
she could rightfully claim.
In the present instance, what was insisted on,
he could aemonstrate to be equitable.
It was only asked, that the State should be rep-
resented in the proportion she was taxed, in the
proportion she supported the burdens of the
Union.
In the apportionment of the direct tax lately
levied upon the United States, the quota of Dela-
ware, relative to Virginia, was as one to eleven ;
relative to Pennsylvania, as one to seven. The
apportionment ot representation upon the ratio
adojj^ed by the present bill, was in relation to Vir-
finia, as one to twenty-two ; and in relation to
Pennsylvania, as one to eighteen.
He would appeal to the candor of the House,
if it could be lUst that the proportion of taxation
should be double the proportion of representation.
The Constitution had connected them, and evi-
dently contemplated thir proceeding in the same
proffression.
He could not help indulging a hope, that neither
the apathv nor the interests of the larger States
would induce them to oppose the justice of a case
which was so glaring.
He would add, on this head, that the white pop-
ulation of Virginia, in relation to Delaware, did
not exceed the proportion of nine to one ; and he
did not believe that a greater portion was paid
by Virginia of the taxes derived from excises and
the duties upon imports, which composed the
principal pecuniary burden of the United States.
In tne militia requisitions, Delaware stood, in
relation to Virginia, as one to ten ; in relation to
Pennsylvania, as one to nine. In short, turning
his views to every object, he could discover no
equality between the burdens supported and the
representation allowed to Delaware by the present
bill. On the contrary, the ratio of her burdens
was. in all cases, double ; and in many, more than
douUe that of her representation.
Some gentlemen had asserted that it was indif-
ferent to what part of the nation the unrepresent-
ed fraction belonged, whether to a small or to a
lan^e State.
If, said Mr. B., we had interests as a nation
only, and not as States, the assertion might be
correct. But was he to be told it was the same
thing to Virginia, whether she had twenty-two or
twenty-three members, as it was to Delaware,
whether she had one or two ? With a view to
every State consideration, the loss of a member to
Delaware was equal to the loss of eleren to Vir-
ginia. Suppose Virginia to have twenty-two
representatives, Delaware two, and the other
States in their several proportions, and a general
agreement is made to strike o£r one-haltof the
representation. The loss to Delaware would be
one member, to Virginia eleven, and the other
States in proportion.
Mr B. said, he might console himself and com-
fort his constituents, if it were practicable, and
gentlemen were disposed to equalize the ratio of
taxation with that of representaiion. But of this
he had no hope, either as a thing feasible under
the Constitution, or as a thing to which the House
would be ever Drought to consent. He had no
other resource, than to rely that the magnanimity
of the larger States would protect from injustice
and oppression their smallest and weakest sister.
Mr. B. said, he was not governed in the opinion
he had adopted in relation to the ratio by the con-
sideration solely of State interest. His great ob-
ject was to augment the members of the Repre-
sentative branch of the Gk)verDment. He believed
that the streogrth of the National Government ex-
isted in that House; and by increasing the mem-
bers of this House, its weight and strength were
augmented. He confessed it to be his object to
make the Qeneral Government so strong as to be
able, with equal certainty, to control the largest
as the smallest States. It was now able to govern
the small States ; but if one of the largest should
denv and resist the authority of the Union, he
doubted the ability of the Government to enforce
obedience to its laws. He had occasionally advo-
cated an increase of Executive authority. He
had then been charged with views unfriendly to
republicanism. He was now contending for an
increase of the weight of the popular branch of
the Government.
He was actuated by the same motive which had
always induced him to give his support to the Ex-
ecutive. His uniform object had been, and would
continue to be, to maintain the independence of
the General Government, and to render it efficient
enough to curb the ambition, and to repress the
dominating spirit which was inseparable from the
large States. His voice had never been to vary
the relative powers of the Executive and Repre-
sentative branches ; but generally by increasing
379
HISTORY OF CONGRESS.
380
H. OF R.
Apportionment Bill.
January, 1802.
the strength to confirm the stability of the Gov-
ernment. An opportunity now presented itself
of promoting the same object by augmenting the
weight of the popular branch; he embraced it
with more zeal than he had ever felt in the sup-
port of the Executive prerogative. He rejoiced
in an occasion which enabled him to manifest,
that the true object of his views was not inimical
to the equal rights and Constitutional liberties of
his country.
He was firmly convinced that the House of
Representatives was, and necessarily would be,
the main pillar of the General Government. While
this branch retained the attachment and possessed
the confidence of the nation, the Government
would endure, but if any State could succeed in
weaning the afi*ections of the people from this
House, and transferring their confidence exclu-
sively to the States, the Government would per-
ish. He wished to enlarge the field of action and
employment under this Government. So small
a number occupy the ground upon the floor of this
House, that the talents and ambition of the mass
of men aspiring to distinction are directed to
State objects, and seeking the aggrandizement of
the States, eventually become hostile to the Gen-
eral Government. The representation of the coun-
try was too sparse, it was not sufficiently united
and bound to the bosom of the nation.
The same sympathy and confidence did not
subsist between a Representative and a constitu-
ent when widely separated. Under the State gov-
ernments, the representatives proceeded from eve-
ry neighborhood. They were well known, con-
nected by common interests and friendship, and
thence enjoyed the entire confidence of their con-
stituents. Whereas, a Representative in this
House is known by name only, to the greater
number of those who elect him.
This evil will always remain, but it may be
diminished. A gentleman from Virginia (Mr.
Randolph) expressed his apprehensions that, by
augmenting^ the members of this House, the splen-
dor of the State Legislatures would be obscured,
and they might ultimately dwindle into insignifi-
cance. Mr. B. said, that it was certainly strange
that when Virginia alone had a House of Repre-
sentatives composed of 190 members, such an ap-
prehension should be expressed, when it was pro-
posed to allow to all the United States only 156.
in her State Legislature, Virginia would have 190
members, when her representation here would
consist only of twenty-four.
It had been insinuated that he was unfriendly
to the State governments. He declared the in-
sinuation to be without the smallest foundation.
On the contrary, his principles and conduct de-
monstrated his attachment to those governments.
The safety of the State governments reposed upon
the strength of the General Government. The
Constitution expressly guaranties the integrity of
the States. He could conceive of no motive which
could lead to the abolition of the State govern-
ments. Suppose them abolished, what advan-
tage would the inhabitants of a small State de-
rive. They are melted down into a national mass^
but thev acquire nothing which they did not en-
joy before, nor anything which every one does
not enjoy in common with them. The insinua-
tion supposes some greater advantage or greater
honor, in living in a large State than in a small
one. Of any such thing, he was not in the small-
est degree sensible. He felt the same satisfac-
tion, and was quite as proud to represent the State
of Delaware, as he could be to represent a dis-
trict of Virginia. If the case was otherwise, and
he could feel any little pride in saying he be-
longed to a large State, it was a feeling which a
trifling change of place might gratify. Bat, said
Mr. B., the people of the small States have as
great a stake in their governments as those of the
larffe.
Upon those governments depend their peculiar
laws, their moral and religious institutions, which
have fashioned their manners, and habits, and
sentiments, and opinions. It is impossible to ima-
gine that the people of any State would be wil-
ling to see the system of rights and obligations,
of wrongs and remedies, belonging to private life,
which has been hallowed and consecrated by an-
tiquity and usage, liable to be broken down by the
powers of a General Government.
Is this supposed, too, to be the project of the
Eastern gentlemen ? For his part, he was infi-
nitely more apprehensive, that the disposition of
the Eastern people was to separate, rather than
politically to amalgamate themselves with the
Southern.
Taking an opposite view of the suhject, Mr. B.
said, he could discover motives which might lead
the aspiring men of large States to seek the de-
pression of the General Government. The Gen-
eral Grovernment removed, they stood like the loftj
oaks amon^ the brambles of tne forest.
All experience had shown political bodies, equal-
ly with individuals, stimulated or impelled byMhe
passion of aggrandizement. It was possible for
the great States to see an interest in the depression
or dissolution of the Federal Union ; but it was
impossible for the small States to derive aA ad-
vantage from the abolition of the State auinori-
ties. The danger, therefore, to be apprehended,
was a dissolution of the Union by the large Slates,
and not a consolidation by the small.
It had been denied by a gentleman from Vir-
ginia, (Mr. Randolph,) that this House repre-
sented the people of the United States ; and as-
serted that we are to be considered on this floor
as the Representatives of the people of the States.
By this he understood that the representation of
each State were to be considered as representing
only the people of their own State. This doc-
trine he considered as repugnant to the nature of
the Government, and tending to efiace its leading
features. The gentleman had recourse, for the
support of his position, to the words of the Con-
stitution, which declare that the Representatives
should be chosen " by the people or the several
States."
In fact, by the laws of the several States, and
particularly of Virginia, the Representatives were
chosen in districts ; and if there was anything in
381
HISTORY OF CONGRESS.
382
January, 1802.
ApportionmerW Bill.
H. ofR.
the grentleman's argument, the members from that
State ought not to be severally considered Repre-
sentatives of the State, but or the particular dis-
tricts for which they were chosen.
Mr. B. here quoted the provisions on the same
subject, of the constitutions of Virginia, North
Carolina, and Pennsylvania; and remarked that
the expression more strongly confined the election
of the members of the State Legislatures to per-
sons residing in the several counties; and observed
that there would be the same propriety in con-
tending that the members of the State Legisla-
tures were not to be considered as representatives
of the whole State, but each of the respective
county by which he was chosen.
Much had been said about consolidation, with
little attention to the subject to which the term
was applied. Nobody could deny that the Gen-
eral Government was a consolidated Government,
to the extent of its powers. The States remained
unconsolidated, but the powers delegated to the
General Government were consolidated. Within
the sphere of its power, there was the same unity
of action as in the State governments. The Gov-
ernment was created for national purposes, and
was constructed on national principles. Its pow-
ers are limited, but, in the exercise of its powers,
it acts as a national, and not as a federate body.
Mr. B. here read the letter of Greneral Wa^b-
iNGTON to the President of the Old Congress, an-
nouncing the adoption of the Constitution ; and
particularly remarked on the following : ^' [n all
^deliberations on this subject we kept steadily in
' view, that which appears to us the general inter-
' est of every true American, the consolidation of
' our Union, in which is involved our prosperity,
' felicity, and safety, perhaps our national exist-
' ence."
The sentiments of the letter maintained the
doctrines for which he contended. It was the
source of peculiar gratification to have the sup-
port of an authority which once commanded uni-
versal respect, and for which his own reverence
had not in the smallest degree abated.
Mr. B. said, he had been reproached with a wish
to increase the power of the Government ; that
failing, to increase the power of one branch, as a
last resort, an attempt was now made to increase
that of another. Nothing could be more unfound-
ed than this charge. The measure he proposed
added nothing to the powers of any branch of the
Government. It was simply to increase the num-
ber of hands in which the existing pow^r was to
be deposited. The point of difference between
him and the gentlemen opposed to him, was, that
he was desirous of committing the powers of the
Government to a greater, and they to a smaller
number. He wished to multiply tne representa-
tives of the people; they to diminish. Whether
the House consisted of one hundred or of one hun-
dred and fifty members, the powers of the Gov-
ernment remained the same, though probably a
Eower exercised by 150 would be more likely to
e attended with effect, than if supported only by
100.
Mr. B. concluded, with a brief recapitulation
and application of the general points of the argu-
ment.
Mr. Mitch ILL said, he hoped the motion would
not prevail. He wished the interests, the rights,
and even the feelings of the people of America, to
be fairly and fully represented. But he was by
no means persuaded that this desirable object
would be, in any sensible degree, promoted by the
motion before the Committee. The bill contem-
plates the establishment of the ratio of representa-
tion, which the citizens of the United States shall
have in this branch of the National Legislature.
Various ideas had been entertained and stated,
concerning the nature and object of this Legisla-
ture. It had been urged by one gentleman that
States only were represented here. It had been
contended by another, that the members of this
House, though chosen by States, ought to be to-
tally detached from State influence. He believed
neither of these conclusions were strictly correct.
His own opinion was, that the Federal Constitu-
tion was an institution for which there was no
example in history. In vain was any Govern-
ment like it looked for among the Repuolics of an-
cient Greece. The Acheean league was, indeed, a
noble^ thouffh inefficient attempt, at ^something of
the kind. In modern Italy, warfare and conten-
tion had generally kept the Republics at variance:
and the struggles between the rival Powers ot
Genoa and Venice, had manifested as uneasy a
spirit abroad, as the Athenians and Florentines
had shown at home. Even among the Swiss and
the Grisons, there was a confederation of States,
and not a representation of them, in a general
council. The cantons of Helvetia were a mere
confederacy of Republics; that is, a leagueing
together of distinct and independent sovereign-
ties, by compacts and treaties, for the safety of the
contracting parties. But there was no general
council of the nation. In the United Netherlands,
some approach towards a form of government
had been made ; yet the system was immature
and imperfectly elaborated.
In America^ the organization of the political
system was widely different. Here^ different col-
onies had been settled and provinces conquered,
under European Governments. They grew ana
prospered as dependents upon a transatlantic sov-
ereign. In process of time, oppression threatened
them with her iron rod, and they declared, with
one voice, they would be free. Instantly each
colony and province was erected into a free and
independent commonwealth. The pressure of ex-
ternal foes forced them all to combine in a com-
mon cause. A sense of impending danger made it
necessary for all those newly erected sovereignties
to associate for the purposes of general defence.
They bound themselves by an article of agreement
for that great purpose, and associated themselves,
as well as they could. But the coalition was too
lax and incoherent to endure long. As soon as
peace was made, and the fleets and armies of the
enemy were withdrawn, the Congress was found
to he nerveless, and witnout power.
Another attempt was made to meliorate the
plan of the General Cbvernment. And the result
383
HISTORY OF CONGRESS.
384
H. OP R.
Appifrtionment Bill.
January, 1802.
of that effort, is the present happy and unexam-
pled CoDsiitution under which we are assennbled ;
a form of policy without parallel in the annals of
nations. For here, the commonwealths of Ame-
rica, reserving to themselves the right of sove-
reignty as to local, individual, and internal affairs
of each, send Representatives to this House, to
deliberate upon the more extended, general, and
exterior matters which are interesting to them nil.
It is only in relation to this latter olyect, that the
.establishments and powers of the House of Rep-
resentatives ou^ht to be contemplated. And this
object was particularly defined in the Constitution
of the United States. So far as power was given
by that Magna Charta of our liberties, and no fur-
ther, did the Legislative powers of this body ex-
tend. The great regulations by which the secu-
rity of our reputation, our property, and our lives,
were guarantied, rested chiefly with the State
Legislatures ; and he was happy he had left all
those invaluable nghta provided for, and well pre-
served at home. For the regulation of the prin-
cipal part of territorial and local concerns, involv-
ing the ri^ht of individuals, and the relation of
these to thm^s. as well as the modes of prevent-
ing and punisning crimes, he was perfectly sat-
isfied that tRe requisite power and wisdom re-
sided- in the respective States ; and there it
ought to reside. liow, then, is this House con-
stituted 1 By the States, whose qualified inhab-
itants chose Representatives. For what object is
it constituted ? To deliberate upon those general
questions, merely, which are expressed in the Con-
stitution, and are truly of a federal, universal, or
national nature.
He considered such a Government as of a new
and peculiar cobstruction. It had been called by
some, "Federal;" he questioned the correctness
of that term, as both the words federal and con-
federated, if regard was had to their etymology
and derivation, meant a connexion of independent
States by treaties. By others, it had been termed
a sort ot consolidation, as respected a number of
great and leading objects. He believed that there
might be some hesitation at admitting either of
these terms. It was certainly not a confederacy
of States ; and it was no less evident it was not a
consolidation. This peculiar Government, for
which, as far as his recollection went, there nard-
ly existed an appropriate name, seemed to him a
kind of political partnership, where each of the
parties concerned, besides a separate interest, has
a joint interest in the common stock.
Now, these conjoint interests are so blended
and mingled together, that, in the important points
of general weliare and common defence, there is
a community extending to the whole; ana so anal-
ogous are the predominating benefits to be derived
from this organization, that, on the great outlines
of the subject, there is a remarkable similitude of
sentiment. From the limited extent of the Con-
stitutional powers of this House, a very small rep-
resentation, that of thirty thousand, had been
thought sufficient by the framers of the Constitu-
tion. And from the community of interest in the
greater part of the subjects delegated to them by
the States, there would be seldom a difference
about principles, but the variations, whatever they
were, would exist, in the modes and forms of do-
ing tnio^.
Considering how comparatively few things this
House had to attend to, he thought that ratio a
large one. At the close of the K>rmer census, a
preceding Congress had thought so. They even
determined to lessen it, by declaring that one for
every thirty-three thousand was enoogh. He
believed the interests and liberties of the citizens
were sufficiently secured at that ratio. If he had
any reason to doubt this, he would consent to en-
large the number to the utmost of the limits of
the Constitution. But ten years experience had
shown that the representation had been not only
equal, but adequate. He had not heard of com-
plaints abroad upon this subject. He believc^i
the citizens were satisfied with it. He thought
that public opinion and public confidence had
been so long accustomed to the ratio of thirty-
three thousand to one Representative^ that it was
at least useless, it possibly might be injurious, to
change it.
Judein^ upon the matter on principle, he con-
sidered thirty thousand for one. as a large allow-
ance ; and now, aided by experience, he was con-
vinced one to thirty-three was not too small. He
had stated to the House, in a former debate, his
opinion on a too numerous Legislative body.
He should not repeat what he then had advanced;
but only observe that, in an excessive representa-
tion, there certainly would be more expense and
less dispatch in business. As to the State of New
York, whence he had the honor to come, there
had been lately a strong expression of the sense
of the citizens on this subject. In a convention
lately held for the purpose, it was ordained that
the ratio of representation should be lessened in
the branches of the Legislature.
Much had been said concerning the large frac-
tion in the State of Delaware. This was to him
a matter of secondary importance. This fraction,
and all other fractions, would be virtually repre-
sented in the proposed ratio, as well as in any
other that could be proposed. The peculiar and
exquisite manner in which that House was con-
stituted, gave every one of its members an inter-
est in the whole of the national concerns before
them. And it was the privilege and the duty of
a member from New York, to consult the welfare
of Maine and Tennessee; and of the members
from thqse States to consult for the good of all
the other States.
This community of interest, he contended, went
so far, that even, in the case of laying a direct ux.
that House could not, without violating the Con-
stitution, cause Delaware to pay more of it than
her rateable proportion. The census gave the
number of her inhabitants, and beyond the amount
of her population, it was not in the power of Con-
gress to make her pay. And this rule would be
inviolably regarded, even if her Representative
should; by sickness or any unavoidable accident,
be prevented from attending in his place.
Great apprehensions had been expressed of the
385
HISTORY OF CONGRESS.
386
January, 1802.
Apportionment Bill.
H. OP R.
oyerbearing disposition of the larger States. He
believed nothing had been advanced, during the
session, so chimerical. The fears about rapacity,
selfishness, and dominion, were visionary. When
New York, a strong and powerful State, surren-
dered her impost, and poured her wealth into the
national treasury, was that rapacity? In this
magnanimous act, was there anything that looked
like selfishness ? Was the delivery of the key
into the hand of the nation, a grasping for do-
minion 1 No; there was nothing like it ; nor was
there any probability that such proceedings would
ever hvppen. The smaller States were the most
benefited by the ratification of the present Consti-
tution. They were accordingly the first to adopt
it. And x\iey had uniformly found it a system,
not of oppression, but of protection ; and that pro-
tection would never, with his consent, be with-
drawn from them.
In the course of his remarks, Mr. M. animad-
verted on the proposition made some time since,
in the State of Delaware, to abolish the sovereign-
ty of that State, and to merge it in that of an ad-
joining State.
Mr. Bayard said, that he would furnish the
House with some information respecting the prop-
osition alluded to b^ the gentleman from New
York. The proposition had been made. He
would inform the House by whom it had been
made, and what were the motives of those who
made it. It had been made by a set of men once
called Jacobins, then Democrats, and who now
called themselves Republicans. It had been op-
posed by the Federalists, who, having moststrength,
frustrated it. It had been the desire and effort of
the fohner description of men to get ail the offices
of the State into their hands, in which, having
failed, they wished to be annexed to Pennsylva-
nia, where democratic principles held sway.
Mr. Van Ness. — After the great display of tal-
ents and abilities which we have had upon this
subject, it is not to be expected that I shall rise to
detain you more than a moment or two. I have
attended, sir, with ereat deference and respect to
all the gentlemen wno have been up before me. I
have heard an eloquent discussion, extremely en-
tertaining and improving, but which, being rather
too much confined to abstract principles, I think,
has not been, in all its parts, immediately appli-
cable to the question before us.
Oentlemen, sir, surely deserve credit for their
candor, at least, who avow their motives to be lo-
cal prepossessionsor partialities. Considerationsof
this kind, particular attachments, appear, indeed,
too operative in the present case ; but. sir, I think,
and I believe the sentiment is common to a ma-
jority of my colleagues, that we ought not to be
wholly actuated by such motives. We have heard
much upon the question, whether we are the Rep-
resentatives of the States, or of the people of the dif-
erent States, or whether weare the Kepresentatives
of the whole veople of the United States? I must
confess, sir, tnat the moment I enter this House, I
consider myself as bound by general obligations
towards the whole nation. My obligations and
duties extend to all the United States ; and in an
7th Con.— 13
act of national legislation, I do not feel myself
ju&tified in consulting the particular and more
immediate interest of aov individual State, as con-
tradistinguished from tnose of the others. No
arrangements tending in its result to general ben-
efit or advantage, ought to be varied or rejected,
merely upon the ground of partial inconvenience
to any particular State. This ductrine savors too
much of the narrowness of that contracted illib-
erality which ought never to govern the mind of
the Legislature. He should take extensive views
of his subject, and be influenced only by a liberal
policy.
Our Government is, after all, but a Government
of experiment. We have opened a new road to
ourselves, and are travelling on in it without
knowing, to a certainty, wnat dangers may await
us by the way. We should therefore, sir, pro-
ceed
"With cautious steps, and slow."
We have been, in number, as low as 65. We
have increased to 106. We now propose to rise to
141, (at 33,000;) that is, to considerably more than
a duplication in about thirteen or fourteen years.
Is not this, sir, advancing with pretty rapid
strides? We all acknowledge w& must stop
somewhere.
There is a certain point, sir, that point where
security and convenience for the transaction of
public business meet, which we must not pass; if
we do, we may find it difficult and embarrassing to
recede. The constitution of human nature is such,
that we are all gratified with the enioyment ana
exercise of power. Tell the people they shall
choose a certain number of Representatives; and
if, upon experiment, it is found too large, you will
find it dimcult to diminish. We may hesitate,
ourselves; we may not be disposed to lessen our
chances of re-election. The people will hesitate
to relinquish or abridge their ri^ht. And. sir, if
once we have plunged ourselves mto the dilemma
of too numerous a representation, all the dreadful
evils incident to such a state, and which, in a par-
ticular instance,excites the sensibility of some gen-
tlemen, may be produced before a preventive can
be adopted.
I confess, sir, I am one of those who, though
differing in this particular from some gentlemen
on this side oif the House, whose opinions I highly
respect, believe that an increase of members m a
public body, to a certain extent, will increase the
confidence of the community in that body. I do
not mean, sir, such an increase as would exceed
the line that I have before marked out, and which
would expose the body alternately to ridicule and
contempt, and to the dangerous operation of those
licentious and ungovernable passions which fre-
quently rage in society ; but a moderate, reason-
able augmentation, such a one as is calculated and
adapted to secure the advantages incident to a
wholesome deliberative assembly. I say, sir, in
this case, an increase of members will generally
increase confidence ; and that confidence will be
attended with a correspondent augmentation of
powers, since the Representative body will have
a greater influence over the physical force of the
387
HISTORY OF CONGRESS.
388
H. OP R.
ApportionmeiU Bill,
Januabt, 1902.
community. It certainly, sir, appears to me that
we ought to be extremely careful how we increase
this power in the General Government. I believe,
sir, with many others, that the influence of that
Grovernment has been bearing very hard upon the
State governments. I believe, sir, whatever was
the theory, that the practice, for some time, has
tended to the substantial reduction of the State
governments. I believe this has been the policy,
and perhaps consistently with their principle&,
of some who have borne a conspicuous part in the
administration of our Government; but, I flatter
myself, the doctrine is exploded. In this view,
that is, with respect to the State governments, I
do not wish to see our own powers too much in-
creased in the augmented numbers of this House.
I do not wish to see the State Governments,
which I regard, indeed, as the pillars on which
the fabric of our liberty rests, drawn within and
swallowed up by the vortex of Federal power and
influence. In another view, I do not wish to see
the powers of this House imprudently enlarged,
by too rapid an increase of members. The estab-
lished theory of our Constitution I admire ; I
adore it ; I believe the arrangement and distribu-
tion of power among the several branches of the
Government is, in Ihe main, salutary and correct.
The equilibrium is well established, and may con-
tinue, whilst we are careful not to add too great
a weight to either branch. But, sir, give this
House too decided a preponderance, by means of
its numbers, increased public confidence, and its
consequent increased strength, and you hazard
all.
We have seep melancholy instances of pub-
lic evils resulting from struggles for power be-
tween different branches of the same political
establishment. When, by accident, intrigue, or
other circumstances, the physical power of a peo-
ple has been more peculiarly and completely at-
tached or devoted to one oi those branches, we
have frequently beheld it, conscious of this advan-
tage, and under the influence of the most danger-
ous passions, sweep everything before it that op-
posed the gratification of those passions. I need
not particularize ; the history of every country
that has ever enjoyed even a semblance of liberty,
where there has been even a pretended division or
distribution of power, will furnish us with cases.'
I do, therefore, leel a strong regard, a strong soli-
citude for the preservation and permanent firm-
ness of the other branches of the present Govern-
ment, whilst I am augmenting the numbers, con-
fidence, and power, of this Rouse. We are at
present, and, by a moderate progression, will con-
tinue, a sufficient counterbalance to the other
branches. If we practise upon the pure principles
of the Constitution, I am persuaded it is so.
But, sir, it is said by some gentlemen, that the
difference for which we contend, is trifling; nei-
ther on the score of economy, or any other, can it
be material, &q. I confess, the number of fifteen,
abstractedly, is not very large; but is not the
addition of thirty-five members, which will be the
increase, according[ to the ratio of 33,000, a con-
siderable one? Is It not large, when compared to
the whole number of members? Will not this
satisfy the country ? When our population was
three millions, our representation on this floor
consisted of sixty-five members. When our pop-
ulation was nearly four millions, our number of
Representatives here was one hundred and six,
and so continued until the present day. When
our population appears to be five millions, shall
we callforone hundred and fifty-six, in direct viola-
tion of the principle heretofore established, instead
of one hundred and forty-one, which will be the
number afforded by the divisor of 33,000, and which
is the number we ask for.
I repeat, sir. we must rest somewhere ; we can-
not long proceed at this rapid rate of increase,' in
direct proportion to our population. And it ap-
pears more reasonable, more politic, ^radaally to
lessen our proportional increase, until we Arrive,
by a moderate progression, at an ultimatum, than
to proceed in lull career, and with an intemper-
ate zeal for increase; and thus presently do vio-
lence to the habits and expectations of the coun-
try, by a sudden, an abrupt discontinuance.
I would therefore prefer even a larger ratio than
33,000 to 30,000, but this not appearing desirable
to any part of the House, I shall adhere to thai
number which appears to me most proper and cod-
sistenl of any that has been under consideration.
As I have before said, I respect the feelings and
sentiments of the public upon every occasion, par-
ticularly upon the present, when we are upon a
subject more interesting to them than any other
object of legiiilation. They are generally right.
Taking, necessarily, a strong interest in public af-
fairs, after having bestowed due deliberation and
reflection upon a subject, they arrive at the truth.
This remark applies to an enlightened country,
a country like our own. I consider their opinions
as unequivocally expressed, in the first instance,
by our Constitution, which directs that the num-
ber of Representatives shall not exceed one for
every 30,000, even at the period of its formation,
when our population was so much inferior to the
present, clearly implying that even in that state
of our population, this ratio was fully low enough;
and, of course, that as the population advanced,
the ratio or divisor ought to be increased: by the
law of Congress passed very soon afterwards, and
after the taking of the first census, which, pursu-
ing this principle, raised the ratio to 33,000, by the
recommendation of Congress, (two-thirds of both
Houses concurring,) of an article, by way of amend-
ment, to the Constitution, regulating, in eflTect, the
ratio by the population. Here, indeed, some gentle
men triumphantly exclaim : ^' But that recom-
mended article was rejected ; it was not adopted bf
three-fourths of the States." Thbse gentlemen,
however, should recollect that it was not rejected
on account of its principle. It contained, probably
through the inadvertence of its framers, a pro-
position which was inconsistent and contradictory
in itself. By the terms of it, after the number of
Representatives should have amounted to two
hundred, the proportion was to have been so regu-
lated that there were not to be less than two hun-
dred members, nor more than one for every 30,000;
389
HISTORY OF CONGRESS.
890
January, 1802.
Apportionment Bill,
H. opR.
whereas it might hare happened from the state of
population, that taking the ratio (the least possible,
acconling to the proposed article) the number oi
members would hare fallen short of two hundred.
Here, then, in the same breath, it was proposed
that the number of members should not be less,
and that it might be less than two hundred. To
this intrinsic defect in the form, and not to the
radical principle out of which it had g^rown, the
proposed amendment owed its rejection. Not-
withstanding all this imperfection of form, and
perhaps substance, in which it was submitted, a
number of States, though not, indeed, three-fourths,
assented to it; and the concurrent evidence of the
puolic sentiment in favor of the principle which I
•contend for, is the satisfaction of the country with
the practice under that principle. I would, indeed,
prefer a moderate increase of the ratio, as the most
reasonable arrangement ; but, since that seems not
to be desirable by any part of this House, I shall
adhere to 33,000; for to descend from that, ap-
pears, upon the ground of general principle, to be
reversing the order of things, and to be m direct
hostility to every idea of propriety.
The examples of particular States have been
cited in favor of the more numerous representa-
tion ; but I presume it will be recollected that,
from the difference between the objects of State
and those of Federal legislation, a correspondent
difference may be proper in the relative propor-
tion of representation. The one embraces the
minute and particular interests of the different dis-
tricts and parts of the individual States ; the other,
objects of a more general nature. In the one case,
therefore, a moreintimatelocal knowledge is requis-
ite than in the other ; and this is to be obtained only
by a more numerous representation. In the State,
however, which I have the honor to represent, after
an experience of twenty-four years, and upon the
most mature deliberation, they have lately reduced
their limitation to one hundred and fifty members,
in the popular branch, their present number con-
stating or a few more than one hundred. In
the most important Eastern State, indeed, one of
the most important in the Union, although they
have a right to electa number considerably larger
than here contended for, still I believe that right,
from political inconveniences, has frequently re-
mained unexercised. And here, sir, permit me to
add, (if I am mistaken the gentleman from that
State will correct me,) that in the internal arrange-
ment or apportionment of the Representatives from
the different towns in that State, is observed the
very principle for which we now contend ; thatj is
an increase of ratio in some proportion to the in-
crease of population or electors; and I think sixty
members, whatever may be the whole eligible
number which particular emergencies may draw
forth, is a quorum to proceed to business. The
same principle, that is. a proportionate increase of
ratio, IS adopted, I think, in New Hampshire. All
the other States, perhaps one or two excepted, are
beloTV even our present number, in this popular
branch; many of them very inferior indeed.
It has been strenuously urged and insisted upon,
that every precaution ought to be taken to pre-
vent a combination of the larger States against
the smaller. That the former would always feel
a strong disposition to oppress, and, finally, to
crush the other. But are not those fears chimeri-
cal? How are they warranted by experience in
similar cases ? Why. most of the small States,
or nations, in the world, are brought into exist-
ence, and afterwards supported and reared by the
jealousies and enmities of the large ones, towards
each other. They are not jealous of the weak,
but of the strong ; and neither of them will volun-
tarily suffer a powerful rival to accumulate a de-
gree of strengtn, dangerous to herself. Hence has.
for a long time, proceeded the safety of most of
the small States in the world — I misht instance,
among others, Holland and Switzerland, in Eu-
rope— I might call the attention of this House to
our own political history. And has not even the
State of Delaware discovered in her sister States
the most friendly, the most conceding disposition,
on all important occasions? They will acknowl-
edge the fact. Now and then, indeed, a solitary
instance of a foolish division occurs; but they are
rare ; ambition, rapacity — those very passions that
move the plunderers to the measure, generally
produce a difference about a division of the spoil.
The gentleman from Delaware contends, that he
is the Representative of all the United States ; and
still, the moment he views the fraction likely to re-
main to that State, his feelings seem to whisper to
him, "you are the Representative only of Dela-
ware ;'' for, if that gentleman will, for a moment,
examine the general result to all the small States,
in case of the divi:«ion of 30,000, he will find that
the aggregate fraction is larger than in the case of
33.000, and not smaller, as some gentlemen have
erroneouely stated. Gentlemen are very fearful,
indeed, that the four larger States will obtain a
majority of votes on this floor. What, sir, are
the gentlemen Republicans? Do (hey pretend
that the people ought to be represented, and a ma-
jority of inem, so represented, ought not to govern ?
and are they not willing to allow, if a majority of
the Constitutional electors of the country are
found within any particular States or parts of the
Union, that they should also have a majority on
this floor ? This is proceeding upon the true prin-
ciples of representation, which, I presume, they
are not ready to contest. The maiority of popu-
lation is unquestionably contained m those States.
But the danger is idle. Among other reasons, we
need not now repeat the disproportionate weight
which the small States have in the choice of the
other branch of the Legislature and of the Exec-
utive.
Something has been said about economy ; that
the difference in expense would be trifling, &c.
This opinion comes, in one instance particularly,
from a respectable quarter ; but when I reflect
that, besides the additional consumption of time
which must necessarily result, there will be a sav-
ing, in the course of ten years, of between two
and three hundred thousand dollars in the imme-
diate pay of the members, I cannot think so light-
ly of It. I think it would make a respectable item
in a list of retrenchments. I would not, indeed,
391
HISTORY OF CONGRESS.
392
ILofR.
Apportionment BilL
Jandaby, 1802 .
sacrifice to this object any important advantages
of a Representative Government; but there is no
danger of such a consequence.
The gentleman from Delaware, in adverting to
a struggle which, some time since, took place in
his State, respecting a surrender of their sove-
reignty, acknowledged the fact, but very unneces-
sarily went on to tell us that the attempt was made
by those who were formerly called Jacobins, af-
terwards Democrats, and who now call them-
selves Republicans. It is a little extraordinary, I
confess, and only to be accounted for by local cir-
cumstances, unknown to us, that they snould have
bad to contend in a struggle of this kind with a
set of people formerly called Federalists ; after-
wards, Aristocrats ; and now called Royalists.
The opposition of this latter class cannot have
been consistent with their usual principles ; prin-
ciples which, after full experience, have met with
the public reprobation.
Mr. Van Rensselaer did not rise with a view
to offer any arguments to the committee in ex-
pectation that any one member would be influ-
enced thereby, so ns to induce him to change his
opinion different from what he had expressed on
the floor of the House, or signified by a vote on the
difierent questions' that have been decided ; but
merely to express his opinion and to assign his
reason for the vote he was about to give. When
the question now before the Committee was first
introduced into the House an honorable gentle-
man from Connecticut, (Mr. Griswold,) moved
to strike out the divisor 33,000, for the purpose of
introducing 40,000; he voted for it, but ilie motion
did not obtain. Circumstanced as he was, in the
shape the business now stood before the Commit-
tee, he would vote for striking out 33,000, in hopes
of obtaining a divisor of 40.000. In doing this he
was actuated by the same motive that influenced
him on a former occasion — that of opposing a too
numerous representation. As to two of the rea-
sons his colleague (Mr. Van Ness) had offered in
support of the present bill before the committee —
the act of the, House of Representatives, in the
year 1793, fixing the ratio at 33,000, and the in-
stance of the late convention in the State of New
York lessening the State legislature — Mr. Van R.
said they made more in favor of the divisor of 40,000
than otherwise; for that the ratio of 33,000 for
each member in 1793 was on three million^ which
made a very considerable augmentation to the
House. In the present case the divisor ought to
be received because we have at this time up-
wards of five million of souls. If, then, precedents
and local considerations might be brought to bear
on the present question, it certainly would give
the preference to the divisor of 40,000 rather than
33.000.
Mr. S. Smith, and Mr. Lowndes followed, and
assigned reasons in favor of the ratio of thirty-
three thousand.
On the question being taken for striking out
thirty-three, it was lost — yeas 42, nays 48.
Mr. DENNfs moved to strike out eight, the
number of Representatives allotted to Maryland,
and insert nine; which amendment had been ren-
dered necessary by the supplementary return re-
ceived from Maryland.
On this motion a very desultory debate took
place, which was twice interrupted by motions for
the Committee to rise, which were both lost.
Much personal recrimination, chiefly on the
charge of delay on the one side, and precipitatioo
on the other, was exchanged.
The amendment was at last aereed to — yeas 57.
The Committee then rose and reported the bill
as amended.
The House im mediately took up the report of
the Committee, agreed to tne amendments, and or-
dered the bill to be engrossed for a third reading
to-morrow.
Wednesday, January 6.
The bill for the apportionment of Representa-
tives coming up for its third reading, a motion was
made to recommit the bill to the Committee
of the Whole, that certain returns of the new cen-
sus, not made precisely according to law, might re-
ceive legislative sanction before the apportionment
among the several States should be made.
[The Marshal of South Carolina had not taken
the oath prescribed by law, though he took an oath
some days after he made the return, that it was
faithfully made.]
Mr. RuTLEDGE said he would not struggle
against the sense of the House when unequivocallf
expressed. It had been determined yesterday not
to strike out, for the purpose of not diminishing
the ratios in the bill; but it had not been deter-
mined that the ratio should not be increased.
Thirty-five thousand would be the roost conveni-
ent ratio for the State he had the honorto represent,
and he thought that number would obtain if the
question could fairly be brought before the House.
As the bill was engrossed for a third reading, no
alteration could be made in it without a recommit-
ment. He hoped therefore the motion would pass.
Mr. Elmer would not be opposed to a recom-
mitment if thirty-five would suit the States gen-
erally better than thirty-three, and there was a
prospect of carrying that number ; but he believed
that number would be injurious to the small States;
he should therefore be opposed to the motion.
Mr. Southard thought, as the subject had been
long before the House and under solemn consider-
ation, there was no occasion for the postponement
By increasing the ratio, Rhode Island and some
otner of the small States would be deprived of a
member. This had heretofore been viewed as a
very important consideration, and he hoped it would
be so viewed, and that the bill would not be re-
committed.
Mr. Dennis said, one reason assigned forrecom-
mitting was, in order to pass a law to make there-
turn from South Carolina valid. He believed this
would legalize that return as much as if fifty bills
should be passed on the subject. He was not for
being over-scrupulous on such occasions.
Mr. Bayard hoped the bill would be recommit-
ted to a Committee of the Whole. It was very
discernable that the House yesterday was not dis-
393
HISTORY OF CONGRESS.
394
January, 1802.
Apportionment Bill,
H. ofR.
posed to hear arguments on the subject. He
thought the efficacy of the law was at stake by a
hasty determination. Irregularities have occurred
in the returns in many instances, and it was im-
proper to countenance such proceedings. In re-
spect to South Carolina, the marshal had not taken
an oath prior to his making the return, and yet
gentlemen say it is valid, although the law requires
an oath. If this is admitted, how can we expect
that such requisitions will in future be attended
to 7 If there be any solemnity in an oath, it is not
to be so easily dispensed with, or hereafter there
may be a general failure in complying with the
laws respecting the census. By passing a law on
the subject, that danger will be avoided. Without
they proceeded in that way their laws would be-
come mere waste paper, or dry leaves, that the
winds would drive about in every direction.
There were perhaps but little hopes of success
as he had brought forward the motion, yet he had
been long enough in the House to know that they
might vote one way to-day and differently to-mor-
row. Mr. B. was not confident that there might
not be a change of opinion. Yesterday there was
not sufficient calmness and sober judgment to
hear arguments, but the House decided rather by
the impulse of feeling. On the motion for recom-
mitment he intended to call for the yeas and nays.
Mr. S. Smith trusted that the House would not
recommit the bill. They had with tranquillity list-
ened yesterday to every word the gentleman from
Delaware had to say on the occasion. They could
not expect anything new on the subject. If any-
thing new were possible he was persuaded the in-
genuity of that gentleman would have brought it
Forward. It has been said the return from South
Carolina is not according to law; but it should be
remembered it was not the intention of the law to
preclude any State from its proper number of rep-
resentatives. There was a penalty upon the mar-
shal if he did not comply with the law, but that
was not to make the census ineffectual. He con-
sidered the return from New York a fair return,
although it was not made within the time pre-
scribed by law. The Marshal of South Carolina,
though he did not take the oath before he mi de the
return, yet in a few days he took an oath that it
was faithfully made. The intention of the law
was to give a fair ratio according to the returns,
and any little informality did not invalidate them.
He was suprised that a gentleman so correct as the
gentleman from Delaware usually was, should
charge the House with want of temper. Mr. S.
had been long a member, and never saw the House
preserve its temper better than it did yesterday ;
but he had on former occasions, when gentlemen
-of different political sentiments from the present
majority possessed an ascendency, seen a want of
temper, such as the gentleman now without reason
complained of.
Mr. GtonuARn was unacquainted with the con-
duct of the House formerly. Yesterday hedid think
the conduct of the House was very strange when
it was by some claimed to be the first republican
representation under the new Constitution. Was
Jthere not a temper unbecoming the Legislature
of a great nation ? Did not it appear so when a
gentleman from Massachusetts (Mr. Bacon,) whose
age and steadv sober habits he revered, rose in his
place, and declared that, sooner than agree to any
postponement, he would sit there for forty-eight
hours ? He thought such a temper did not become
those who were about to correct the line of conduct
pursued for twelve years past.
Are gentlemen afraid to trust to themselves,
that they oppose the recommitment of the bill?
Were they afraid to have the question fully dis-
cussed ? He never did agree to vote for thirty
thousand as the ratio. The arguments of the gen-
tleman from Massachusetts, (Mr. Edbtis,) struck
him as forcible, that a principle appeared to be
formerly fixed, that the ratio of representation
should increase with our population. Mr. Q.
thought the bill ought to be recommitted, as the
return from Tennessee was not before them, and
no legal return from another State. The census
was tne basis of legislation on this subject. He
wished that ratio to be fixed that would be best
adapted to the interest of the United States; nor
was he afraid to trust himself or others on this
subject, which did not appear to be the case with
those opposed to a recommitment.
Mr. RuTLEDQS thought that calmness did not
exist yesterday, that should always be observed by
the House. If one gentleman were willing to
stay, others were not. He had heard of a perma-
nent session of a Legislature, and of ?reat cor-
ruption that ensued ; and he did not wish to see
the experiment here. It frequently occurred yes-
terday, that when gentlemen rose to deliver tneir
sentiments, there were repeated calls for the ques-
tion, and therefore gentlemen would not force
themselves upon the House.
The question should be fully debated : this bad not
been the case. He allowed it had been sufficiently
debated whether it should be thirty or thirty-three
thousand, but not in respect to a higher number.
He was for thirty-five thousand, and hoped it
would obtain, not bv any new light that would
be thrown on the subject ; but as several persons
yesterday expressed themselves in favor of a higher
number, he believed many would vote for thirty*
five. He did not see why they should have the
doors closed upon them, and be thus prohibited
from further debate with respect to higher num-
bers. His State felt a deep interest in the sub-
ject, and he should vote for a recommitment.
Mr. Bacon said, a principal reason urged for a
commitment was the unbecoming and unmanly
conduct of the House yesterday, and he had been
held up as eminent in the unworthy affair. The
fentleman from Connecticut, (Mr. Goddaro) had
iscovered in him a disposition unbecoming his
age and the sober habits of his native State.
He confessed he did think it strange yester-
day, when some gentlemen assigned as a reason
for postponing the bill, that the last return from
Maryland had not been compared with the former
return, when they were told it was on the Clerk's
table, where they might satisfy themselves by
comparing it with the former, which was also
there. He saw it with his own eyes. He did
39S
HISTORY OF CONGRESS.
396
H. opR.
Apportionment Bill.
JandarYi 1802.
supDose that something unfair must be intended
by tnat objection being perseveringly urged, when
every member could so easily satisfy himself.
Under these circumstances, he cvould submit it
to the House, whether it was unbecoming his
years, or the sober habits of his native State, to
say that he would sit there till that time the next
day, to hear any arguments the gentlemen could
ofier, that another day need not be lost on the
subject.
Mr. T. Morris was in favor of the recommit-
ment, not for the purpose of altering the ratio,
which he considered as already fixed by the House,
but for makinff the returns valid by law. With-
out doing this ne believed they would establish a
dangerous precedent.
Mr. Smilie was not surprised to see the dissat-
isfaction that prevailed as to the decision made
yesterday ; it was the consequence of State inter-
ests and State attachments. He thought full time
had been given for gentlemen to make up their
minds upon different returns. The House, he
contended, had a right to decide when the ques-
tion should be put, and he thought it was then
ripe for the question. The proceedings that morn-
ing were a mere trial of strength between th« ratio
<^ thirty and thirty-three thousand. Gentlemen
want time, for what ? To carry their point.
Mr. Upbam believed the question had been de-
cided, that a smaller number than thirty-three
thousand should not be inserted. He wished the
bill recommitted to try that point, yet he did not
know that it would be in favor ol New Hamp-
shire to raise the ratio.
Mr. Van Ness was more than ever convinced
that local interest should not be attended to on
this subject. He supposed that inflicting the pen-
alty of the law on delinquent marshals would be
the best mode of preventing future neglect. The
temper of the House yesterday had been adverted
ta and an expression made by a eentleman from
Massachusetts had been spoken of with consider-
able animation. But was there not the same
temper manifested by the minority? The gen-
tleman from South Carolina had talked of perma-
nent sessions, turning his eye, he supposed, across
the Atlantic. He might have found them nearer
home. Mr. Van Ness had read of nocturnal ses-
sions of that House, and also in the Parliament
of the United Kingdom of Great Britain and Ire-
land. He did not, however, approve of nocturnal
sessions.
Mr. Dana could not pretend to measure the
minds of other gentlemen by his own, though
some appeared to go on that plan. He could not
wrap himself up in his own superlative intelli-
gence and say that nothing new could be adduced ;
and he thought when such insinuations were
thrown out, there was a want of that urbanity
which should prevail in the House. He and his
friends were charged with urging unnecessary
delay; he felt no solicitude for any further discus-
sion on the subject, but he did feel a solicitude as
to the impropriety of their proceedings. Yester-
day manifested, that public bodies are at times
actuated by strong sympathy, and push forward
with intemperate zeal, and an obstinacy unfavor*
able to fair discussion.
Mr. Dana then detailed the necessary formali-
ties in the returns ; if they were not complied with
the business ought not to be rashly passed over.
That the House were to examine and determine
on the validity of returns, and the mode should be
uniform. Some of the returns on their face are
liable to suspicion. If thev received those returns^
would it not be waiving tiie penalty laid on mar-
shals ; or be sufficient to induce the President to
enter a nolle prosequi ?
Mr. Randolph perceived this business was like-
ly to go out to the people in a shape calculated to
make them believe a majority of this House were
disposed to suppress discussion, and act on illegi-
timate documents. It was proper to inquire whe-
ther that was the fact. The passage of that biiJ,
as the gentleman from Maryland (Mr. Dennis)
justly observed, makes the informal returns valid.
They were compelled to act upon those returns or
not at all. Gentlemen complained they could not
get at the question of raising the ratio ; this is not
the fact. If the House refuse to recommit, does it
not show clearly it is opposed to raising the ratio?
As to obstinacy, might not the charge be recrimi-
nated 1 Did not reiterated motions for the Com-
mittee to rise show as much obstinacy as when
gentlemen say they would decide before they rose?
There were instances of sittings being continued
until nine or ten o'clock, formerly, to decide ques-
tions. A gentleman from Connecticut says this
disposition comes into existence when there is the
first republican House of Representatives. Mr. R.
denied that this was the first republican House. He
was of opinion that the republican interest went out
of that House when the British Treaty came in.
After the law for carrying that treaty into effect
passed, the gentlemen now in the minority gained
an ascendency. He was unwilling to admit that
to be the first republican House of Representa-
tives.
Mr. GouDARo explained, and stated that he said.
" which some claimed to be the first republican
House;" but it was far from being his opinion; he
believed all former Houses bad been republican,
and he hoped this would show itself to be so tool
Mr. Dennis thought ihey must receive the re-
turns as they were. He was not for the present
ratio; yet he thought it was fairly taken; still he
was in favor of going into the Committee of the
Whole to bring the question for a higher ratio
fairly before the House. The arguments about
the formality of returns proved too much. Accord-
ing to them a new census should be taken in South
Carolina. They should not be so rigid in that
House as in a court of justice; they had every rea-
son to suppose the returns were properly taken.
If the bill should be recommitted he believed he
would move for thirty-seven instead of thirty-three
thousand; and if he could not get that, he would
be for thirty-five thousand.
Mr. Perkins considered the subject of import-
ance as it respected the regularity of proceeding,
which was certainly a matter or very great im-
portance. He would not say the returns ought
397
HISTORY OF CONGRESS.
398
January, 1802.
Apportionment Bill.
H. OP R.
not to be admitted, bat he would say they should
only be admitted according to law. The law
says they shall be made within a certain time; if
they are not, a future law only can make them le-
gal. Neither the Committee of the Whole nor
the Hoase could dispense with the law. Suppose it
had been made the duty of the President toapportion
the representation; would any gentleman in that
case say he could receive any return of the census
not made according to law ? No ; nor can this
House. He wished a recommitment, to correct
inaccuracies; and he believed it a great inaccura-
cy that this was not considered yesterday. He
would have the penalties of the law inflicted upon
the marshals, that a member need not in future
have occasion, when the appointment was about
to be made, to ri:«e from his seat and call for an ad-
ditional returo.
Mr. NicBOLSON did not believe that passing
over the informality of the returns in silence, as
gentlemen call it. will exempt the marshals frum
the penalty, but he thought that passing a law
to legalize the returns would screen them. Two
reasons are assigned for going into Committee of
the Whole agam on this bill. One, to pass such
laws; the other to scuffle again for the ratio,
which he considered as fairly nxed yesterday. The
great object of the gentleman from Delaware was
to scuffle again for the ratio ; by persevering he
hoped to succeed: perseverance was very com-
mendable, but he hoped that gentlemen would par-
don the majority if they also persevered.
Mr. S. Smith. — It has been observed on the pro-
ceedings of yesterday, that a fair, open discussion
did not take place. He confessed an obstinacy
was disco verea. He had been the greater part of
his life in minorities, and he never saw a mmoricy
discover so much obstinacy as yesterday. The
observation of the gentleman from Massachusetts
was not a relinquishment of his steady habits, but
an evidence of them; and he believed that decla-
ration obtained the vote. Calculation was a fair
ground of decision on this subject, and it became
some gentlemen to examine whether, in wishing
to take a higher ratio, they were not actuated by
a spirit of envy towards Rhode Island, that because
she had lately taken a more proper bent in politics
they wished to deprive her ot one member. A
higner ratio would also deprive republican Mary-
land of one member, and give a greater propor-
tional weight over her to another State not repub-
lican.
Mr. Gr IB WOLD wondered much to hear on that
floor such distinctions, that one State was repub-
lican and another was not ; he thought they had
it from very high authority, and such as that gen-
tleman, he supposed, would greatly respect, that
we were all republican, all federal.
Mr. G. believed there were many reasons for
recommitting the bill. First, that a critical ex-
amination of the returns might be made. The
law prescribed certain modes which, in many in-
stances, the returning officers have deviated from.
In the return from Tennessee, which he had be-
fore him, but which had never been printed for
the use of the House, and which very few mem-
bers had ever seen, in that return there was no
certificate that the marshal had taken any oath.
He did not say there had been no oath on that
occasion ; but there was no evidence of it before
that House. He did not think it was a correct
mode of doing business to admit such informali-
ties without any investigation.
He also wished the bill recommitted for the
purpo:>e of re-examining the ratio. He was origi*
naily for 40,000, and would still be for that num-
ber, as he believed the ratio should progress with
the population of the country. In the nature of
things we must advance the ratio at some period
or otner, and when shall we begin it if not now?
Mr. Southard spoke against recommitment. He
thought it a dangerous and disorganizing attempt.
They must act upon the evidence they had of the
census, or not at all. Some gentlemen were in
favor of raising the ratio, after it had been solemnly
argued, and so much had been said in favor of a
large representation. Did the^f^ wish now to re-
trace their steps after the subject had been de-
cided, and enlarge the ratio, to the great injury of
some of the small States?
Mr. Dennis said, in these enlightened days of
new-born republicanism, he did not expect to hear
gentlemen charged with a desire to punish the
citizens of Rhode Island and Maryland because
those States had undergone a political regenera-
tion. He could not imagine bow his colleague
(Mr. Smith) could attribute such unworthy mo-
tives to him.
He had formerly stated why he varied his vote
from 33 to 30 ; his great object was to strengthen
the General Government, not, as some reporters
had represented, to give that House greater weight
than the Senate, for he had always believed that
in a conflict between the difi*ereot branches, that
House would bring the Senate and President pros-
trate at its feet. His object in enlarging the rep-
resentation was to enable its members to counter-
act the misrepresentations which have been in-
dustriously spread through the country, and which
are calculated to destroy that Government, and
erect the State government on its ruins. He was
now inclined to meet the objection as to inconve-
nience in having a great number in that House.
By raising the ratio to 37,000, it would give that
HousQ, he believed, about 120 members. The in-
terest of Maryland was in favor of strengthening
the Federal Government rather than increasing
its own relative weight.
Mr. T. Morris gave an account of the manner
in which the returns from New York and Mary-
land had been made. If the Marshal of the latter
possessed one-tenth of the zeal that the gentleman
from Maryland (Mr. Smith) had, he might unin-
tentionally make a mistake in his last return.
Since that return, the gentleman from Maryland
had argued the bill with a precipitancy that party
calculations only could impel. He wished to be
convinced that the first return was inaccurate.
The addition of one member to any State was of
importance to the Union.
Mr. EusTis was against recommitting the bill.
Yesterday he voted for the Committee to rise, but
399
HISTORY OF CONGRESS.
400
H. OP R.
Apportionment BiU.
Jan n ART, 1802
was now satisfied as to the returns from Mary-
land and South Carolina. Substance he thought
should never be sacrificed to form. The principle
he started upon was 33, and he still adhered to
that. He thought it incorrect to say the powers
of the House would be increased by increasing iis
members; vary the number as you please, the
Constitutional powers remain the same. If, the
House decide against going into Committee, it is
as much as saying they are satisfied with 33.000,
the ratio fixed in the bill. He had no idea of
crowding or bearing down the minority by the
majority, nor did he think there was any ground
for making such a charge. Gentlemen have a
full opportunity now on the question of going into
Committee to offer their arguments in favor of in-
creasing the ratio, and he had no doubt they would
be patiently heard.
Mr. Bayard observed, that from the explana-
tions made about ill-humor yesterday, it was pos-
sible he and his friends might mistake. Grentle-
men say tney were patient and willing to hear
discussion. There had been imputations made by
gentlemen yesterday and that day. that the mo-
tives by which the minority were influenced were
neither fair nor honorable. Was that candid ?
When complaints were made of the conduct of
the House yesterday, it was replied that the House
were formerly guilty of similar impropriety. He
would not defend the conduct of any former Con-
gress ; if it was wrong then, it would be equally
wrong now. It would be more laudable to vary
from It than to imitate it.
Mr. B. said there were many grounds upon
which a recommitment could be urged. In point
of fact the census was not such as to enable them
to act. Mr. B. then gave a history of the re-
turns, &c.
An honorable gentleman had said we should
not sacrifice form to substance, but where, he
asked, could the line be drawn ? It might at
length be urged, that the oath was entirely a mat-
ter of form, and therefore to be wholly dispensed
with. One State might expect a cargo of United
Irishmen, and another a cargo of a different de-
scription, to swell their population ; they would,
therefore, defer their return, disregarding anything
and everything the law prescribed, as mere matter
of form. Unless attention is paid to the forms
prescribed, the nation is exposed to perpetual
fraud. A return was not true or legal if not made
within the time limited. Gentlemen say, pass
this bill, and then make a law to legalize the re-
turns ; this, he said, to use a vulgar adage, would
be putting the cart before the norse. As to in-
flicting a penalty upon the marshals, it could not
be done if that House say th€ returns arc legal.
Mr. B. said he did not expect to hear from a
gentleman so urbane and well-bred as the one
from Maryland, (Mr. Sihith,) arguments founded
on the supposition of one State being republican
and another not so. He hardly knew how to ex-
cuse the gentleman when he said the minority are
not republicans. If he did mean to apply such
an epithet to them, Mr. B. said he would oppose
a flat denial to his assertion ; he knew not what
pretensions there could be for saying so. Can it
be alleged that we ever urged anythmg that was
anti-republican? The gentleman must have for-
got himself. He surely thought he was address-
ing a mob on some electioneering occasion. I
may have mistaken the gentleman ; there are many
kinds of republicans. Bonaparte called himself a
republican, although he was more absolute than
Louis XIV, ruling the nation with a rod of iroD.
Bonaparte called himself a republican^ to ^et the
station he now holds. If, with a certain high ao-
thority, the gentleman does believe '' we are all
federalists and all republicans," he should define
what species of republicanism he meant when he
made use of the term. [Mr. B. was called to
order here and in one or two other parts of bis
speech, but the Speaker declared him to be in
order.]
Mr. B. proceeded, and observed he was about to
say we (the minority) are not such republicans as
Monsieur Bonaparte or Robespierre ; we do not
wish to make a general prostration of every civil
institution, and of all respect for morals and re-
ligion.
As to this being the first republican House of
Representatives, or republicanism going out when
the British Treaty came in, he believed oo such
opinion was ever entertained until the country
was infected with French principles. Then one
party was called British and the other French.
He did not know that we had suffered from that
treaty, but we owed our war with France to it
It haa been reiterated that there was an anti-
republican party in that House. He was sorry to
see the House divided by such artificial distmc-
tions. He wished all would co-operate in dis-
pelling such imputations, and allow that all are
equally interested in promoting the welfare of our
common country. He was sorry to hear that
these explanations as regarded parties are matters
of form, and as the gentleman from Massachusetts
says these are of no importance, he hoped they
would be discarded.
As to there being pertinacity or obstinacy in
the minority in making motion after motion yes-
terday, he wanted no precedent for his justifica-
tion ; ne was satisfied with himself^ and would
proceed in that line of conduct which he felt to
be his duty. Must gentlemen be told they are
guilty of obstinacy because they do not bow the
neck or humble themselves in the dust to every
measure of the majority ? Or must they bear the
charge of not being actuated by proper motives if
they venture to differ from the majority? He
hoped no one would be intimidated by such un-
just imputations.
Mr. RuTLEOGE expressed his opinion in favor of
the propriety of answering the imputations which
had been made; but he hoped the business would
cease there, and that they snould not proceed with
recrimination, which was calculated to do injury
abroad.
Mr. S. Sm[th replied to Mr. Bayard. He was
pleased that Mr. B. allowed he had behaved with
politeness to gentlemen and avoided personalities.
When he spoke of temper, it was not his own,
401
January, 1802.
fflSTORY OF CONGRESS.
Apportionment Bill,
402
H. ofR.
but that of the House, he praised. If he had at-
tempted an euloffium on the mildaess of his own
temper it would have beeu very ill-judged ; he
believed few would have given credit to it. The
gentleman from Delaware complains of party dis-
tinctions being made in this House; but he started
the subject himself yesterday. A gentleman from
New York, in the course of debate, had observed
that it had been made a question in the State of
Delaware whether sovereignty was of any real
advantage, and whether they would not be in a
better situation b^ being united to another State.
Tbe gentleman from Delaware rose in his place
and said it was true such a question was asfitated,
but by whom? By a set of persons originally
called jacobins, then democrats, and now republi-
cans. What was their object? They had been
lon^ strugding to set the offices of that State into
their hands, but failing in their attempt, they
wished to throw themselves into the State of
Pennsylvania. Mr. 8. said the gentleman to be
sure had a right thu^ to abuse his own constitu-
ents, and he had nothing to do with it ; he could
not at the time help regretting that the gentleman
bad not a colleague to answer him. If he had
been his coUeae ue he would have answered him
in this way : Who opposed giving up the sover-
eignty of the State of Delaware ? A set of men
formerlv called old tories, next aristocrats, then
monarchists, and now feideralists. The gentle-
man from Delaware might in bis way be a repub-
lican, and so might Bonaparte in his way. Mr.
S. did not think we are all federalists and all re-
publicans, thougb he believed the great mass of
the people of tbe United States were so. He be-
lieved some leading characters in the country
were led away by the intrigues and influence of
Britain ; while they could make a handle of French
malconduct and French depredations, tbe people
were led away by these characters ; but when the
days of delusion were oyer^ the people returned to
their sober senses. He had been forced into the
observations he made relating to party.
Mr. Bayard thought the gentleman from Mary-
land (Mr. Smith) had betrayed sensibilities not
justified by anything which had occurred. The gen-
tleman inust certainly have taken to himself what
was designed for others, for he had not observed
any personal remark which had been directed to
his feelings. On the contrary he had thought the
gentleman was treated with great decorum. But,
said Mr. B., be the case as it will, the gentleman
is not excusable for making a charge against me
neither correct nor candid. He has stated that
I have abused my constituents ; there is not the
.smallcift ground for such a statement. Mr. B. said
he was incapable of abusing his constituents, or
suffering them to be abused by others. He would
take the liberty of examining the grounds of tbe
gentleman's charge.
In the debate of a former dav it had been in-
sinuated that he was inimical to tne State govern-
ments, and it was stated upon the occasion that
an attemnt had been made to abolish the sover-
eignty of nis State, and to unite the territory with
other States. There could have been no inten-
tion in stating the fact, but to support the insinu-
ation of his hostility to the State governments. It
therefore became him to disclose the whole truth,
that the attempt referred to had been made, but
that it was made by the party to which he was
opposed, and repelled by the party to which he
was attached.
The parties could not be discriminated without
naming them, and as his opponents had been dis-
tinguished bv several names, be had a right to
suppose he snould give the least offence by using
them all« and allowing them to make their selec-
tion. The gentleman had said he had abused his
constituents. Sir, said Mr. B., I believe there
were very few of my constituents who co-operated
in the project of pulling down the State govern-
ment, for tne purpose of submitting themselves to
the yoke of the democracy of Pennsylvania. The
gentleman might be assured that they who bad
sent him here were disposed to pull down no gov-
ernment.
But he would ask, where was the use in de-
scribing people by the names they had assumed
themselves? Was it abusing the party to call
them democrats? There had been a democratic
society formed in our first city, and some men now
high in office had become members of it. They
were then not ashamed, but proud of tbe appella-
tion of democrat. The name might not be deemed
as honorable as formerly, but be had not been sen-
sible before that it was considered as a term of
abuse.
The gentleman had said a great deal about Brit-
ish influence. He does not believe that we are
infected with it, or the people in general, but he
believes there are leading characters in the coun-
try led away by the intrigues and influence of
Britain. Sir, said Mr. B., I am ignorant of the
sources of that gentleman's information; but if
the gentleman ventures his assertion upon the
ground of public news — upon the ground of what
has been circulated in tbe newspapers and credited
by certain people — give me leave to tell him that
there is the same foundation to assert that some
leading men in the country have been led away
by French influence and French intrigues. He
believed that France had employed more agents
in the country than Britain, who had held out
more allurements, and employed greater and more
successful means to seduce the integrity of our
citizens than British agents — at least such things
had been said and believed by as many people as
those who entertained the opinion expressed by
the gentleman. For his own part he could hope
that neither belief had anv other foundation than
the noise and clamor or party. He deprecated
the consequences of distinction drawn from sup-
posed connexions with foreign nations. If there
must be party, let us divide as Americans, and not
as French and English. The very distinction
tends to embitter tbe spirit of party and weaken the
attachment to our country. He was sorry that
upon the floor of that House gentlemen should
employ themselves in blowing the flame of civil
discord. It would be a worthier office to harmo-
nize and to remove the errors of public opinioD,
403
HISTORY OF CONGRESS.
404
H. OF R.
Apportionment Bill.
January, 1802 .
which we know to be groundless, and which di-
vide the country. He did not know that he had
heretofore transgressed the doctrine he had incul-
cated, but if he had he would endeavor in future
to practise it.
About half after 3 o'clock an adjournment was
called for, but not agreed to.
Mr. Elmer advocated an immediate decision
of the question ; nor did he think that could be
justly called obstinacy, as all the information
wanted on the subject was before the House. He
expressed his regret for the personal allusions that
had been made.
Mr. GoDDARD said he would consider it one of
the most unfortunate incidents of his life if what
he had said had necessarily given rise to the party
aUusions that had been made. He thought the
House must have hid a strong predisposition to
the disease with which it had been that day in-
fected if it had been excited by his observations.
Mr. G. was convinced that prejudices and pas-
sions crept imperceptibly upon the public mind.
He had examined himself as to the chari^e made
by the gentleman from Maryland, (Mr. Smith,)
and would repeat what he had before observed,
that he was willing to deprive his own State of a
Representative to benefit the Union. If the gen-
tleman has not patriotism himself to act in that
manner, he trusted it would be allowed a human
mind might be actuated by such motives. As to
being influenced by envy towards Rhode Island
on account of its political ^regeneration, he as-
sured the gentleman envy was the last passion
that would rankle in his mind.
The question for recommitment was taken by
yeas and nays. Yeas 34, nays 56, as follows :
Ys4B — Willis Alston, James A. Bayard, Thomas
Sonde, John Campbell, Manasseh Cutler, Samuel W.
Dana, John Davenport, John Dennis, Abiel Foster,
Calvin Goddard, Roger Griswold, William Barry Grove,
Joseph Hemphill, William H. Hill, Benjamin Huger,
Thomas Lowndes, Ebenezer Mattoon, Lewis H. Morris,
Thomas Morns, Joseph Peirce, Elias Perkins, Nathan
Read, John Rutledge, William Shepard, John C, Smith,
John Stanley, Benjamjn Tallmadge, Samuel Tenney,
George B. Upham, KilUan K. Van Rensselaer, Peleg
Wadsworth, Benjamin Walker, Lemuel Williams, and
Henry Woods.
Nats — John Archer, John Bacon, Theodorus Bailey,
Phanuel Bishop, Robert Brown, William Butler,
Thomas Claiborne, Matthew Clay, John Condit, Rich-
aid Cutts, Thomas T. Davis, Lucas Elmendorf, Ebe-
nezer Elmer, William Eustis, Andrew Gregg, John A.
Hanna, Daniel Heister, Joseph Heister, William Helms,
William Hoge, James Holland, David Holmes, George
Jackson, WUliam Jones, Michael Leib, John Milledge,
Bamuel L. Mitchill, Thomas Moore, James Nott, An-
thony New, Thomas Newton, jr., Joseph H. Nicholson,
Thomas Plater, John Randolph, jr., John Smilie, Israel
Smith, John Smith, of New York, John Smith, of Vir-
ginia, Josiah Smith, Samuel Smith, Henry Southard,
Richard Sprigg, Richard Stanford, Joseph Stanton, jr.,
John Stewart, John Stratton, John Taliaferro, jr., Da-
vid Thomas, Thomas TiUinghast, Philip R. Thompson,
Abram Trigg, John Trigg, Philip Van Cortlandt, John
P. Van Ness, Joseph B. Vamum, and Isaac Van
Home*
And then the main question being put that the
said bill do pass, it was resolved in the affirmative
— yeas 85, nays 4, as follows:
YsAs — Willis Alston, John Archer, John Bacon,
Theodorus Bailey, James A. Bayard, Phanuel Bishop,
Thomas Boude, Robert Brown, William Butler, John
Campbell, Thomas Claiborne, Matthew Clay, John
Condit, Manasseh Cutler, Richard Cutts, Samael W.
Dana, Thomas T. Davis, John Dennis, Lncas Elmen-
dorf, Ebenezer Elmer, William Enatu, Abiel Foster,
Calvin Goddard, Andrew Gregg, Reger Griswidd, Wil-
liam Barry Grove, John A. Hanna, Daniel Heister,
Joseph Heister, William Helms, Joseph Hemphill, Wil-
liam H. Hill, WilUam Hoge, James Holland, David
Holmes, George Jackson, William Jones, Michael Leib,
Thomas Lowndes, Ebenezer Mattoon, John Milledge,
Samuel L. Mitchill, Thomas Moore, Lewis R. Morris,
James Mott, Anthony New, Thomas Newton, jr., Joseph
H. Nicholson, Joseph Pierce, Elias Perkins, Thomas
Plater, John Randolph, jr., Nathan Read, John Rat-
ledge, William Shepard, John Smilie, Israel Smith, John
C. Smith, John Smith, of New York, John Smith, of
Virginia, Josiah Smith, Samuel Smith, Henry Southard,
Richard Sprigg, Richard Stanford, John Stanley, Joseph
Stanton, jr., John Stewart, John Stratton, John Talia-
ferro, jr., Benjamin Tallmadge, Samuel Tenney, David
Thomas, Thomas Tillinghsst, Philip R. Thompson,
Abram Trigg, John Trigg, George B. Upham, Philip
Van Cortlandt, John P. Van Ness, Joseph B. Vamnm,
Isaac Van Home, Peleg WadsworUi, Lemuel Williams,
and Henry Woods.
Nats— -John Davenport, Thomas Monis, KiUian K.
Van Rensselaer, and Benjamin Walker.
Thursday, January 7.
A memorial of Evan Thoma.s and others, a com-
mittee appointed for Indian affairs by the yearly
meeting of the people called Friends, held in the
town of Baltimore, was presented to the House
and read, praying the attention and interference
of Congress to prevent the supply of spirituons
liquors to the Indian tribes residing in the Terri-
tory of the United States Northwest of the river
Ohio, by traders and settlers on the frontiers, and
to introduce among the said Indian tribes the most
simple and useful arts of civil life. — Referred to
Mr. Samubl Smith, Mr. Qriswold, Mr. Davis,
Mr. Hoge, and Mr. Randolph, to examine and re-
port their opinion thereupon to the House.
A memorial of Isaac Zane was presented to the
House and read, praying that he may be permitted
to retain the possession of a certain tract of land
which was granted to him by the Wyandot na-
tion of Indians, and which, by the cession of lands
since made by the said nation, falls within the
boundary of the United States. — Referred to Mr.
Jackson, Mr. Fearinq, Mr. Van Horne, Mr. El-
mer, and Mr. Josiah Smith; to examine and re-
port their opinion thereupon to the House.
A memorial of sundry delegates chosen by, and
in behalf of. a number of aliens residing m the
county of Cnester, in the State of Pennsylvania,
was presented to the House and read, praying a
repeal or amendment of an act of Congress, passed
on the eighteenth day of June, one thousand seven
hundred and ninety-eight, entitled ^*An act sup-
405
HISTORY OF CONGRESS.
406
January, 1S02.
Standing Rules and Orders,
H. ofR.
plemeatarv to, and to amend the act, entitled 'An
act to e:»taDlish an uoiforiB rule of naturalization,
and to repeal the act- heretofore passed on that
subject." — Referred to the committee appointed,
on the fifteenth ultimo, to prepare and hring in a
bill or bills for a revision and amendment of the
laws respecting naturalization.
The Speaker laid before the House a letter from
the Secretary of State, enclosing a table showing
the comparative duties paid in the ports of Great
Britain on goods imported into Great Britain, in
American, foreign, and British bottoms, since the
5th of January, 1798, so far as the same respects
the commerce of the United States, made in pur-
suance of a resolution of this House of the 24th ul-
timo ; which were read, and ordered to be refer-
red to the Committee ot the whole House on the
state of the Union.
The Speaker laid before the House a letter from
William Doughty, principal clerk in the office of
the Treasurer of the United States, accompanying
an account of Samuel Meredith, the late Treasurer,
of receipts and expenditures of public moneys, from
the first of July to the thirteenth of SeptemW, one
thousand eight hundred and one ; which was read,
and ordered to lie on the table.
The Speaker laid before the House a letter from
the Secretary of the Treasury, accompanying a
statementexhibitingtheamountofdutiesanadraw*
backs on goods, wares, and merchandise, import-
ed into the United States, and exported therefrom,
during the years one thousand seven hundred and
ninety-eight, one thousand seven hundred and
ninety-nine, and one thousand eicfht hundred, in
pursuance of a standing order of the House of the
third of March, one thousand seven hundred and
ninety-seven ; which were read, and ordered to lie
on the table.
The House proceeded to consider the second and
third resolutions reported, on the twenty-second
ultimo, from the Committee of the whole House
on the state of the Union ; and the same being
severally twice read were agreed to by the House,
as follows:
Resolved^ That it is expedient to inquire whe-
ther any, and if any, what, addition it n^ay be
necessary to make to the military stores of the Uni-
ted States.
Resolved^ That a committee be appointed to in-
quire and report whether any, and, if any, what,
amendments are necessary in the laws respecting
the fortifications of the harbors of the United
States.
Ordered^ That Mr. Greoq, Mr. L. R. Morris,
Mr. Lowndes, Mr. Newton, and Mr. Cdtts, be
appointed a committee, pursuant to the first reso-
lution.
Ordered^ That Mr. Eustis, Mr. Davis, Mr.
Walker, Mr. John Taliaferro, Jr., and Mr.
Jones, be appointed a committee, pursuant to the
secona resolution.
Mr. S. Smith reported a bill for the protection
of American commerce and seamen in the Medi-
terranean and adjoining seas, which empowers the
President fully to equip and employ such vessels
of the United States as he shall deem requisite;
that they he empowered to capture Tripolitan
vessels ; and that the President be authorized to
commission private vessels, with power to cap-
ture vessels of Tripoli.
Read twice, and referred to a Committee of the
Whole.
Mr. Nicholson presented a letter which he
had received from the Governor of Maryland, en^
closing a letter from the Commissioners of the
City of Washington, addressed to the Legislature
of that State, stating their present inability to de*
fray the interest accruing on loans of about $250.*
000, made by Maryland, and suggesting the expe-
diency of that Legislature offering to receive from
Congress, who had guarantied tne loans, six per
cent, stock at par; the loans having been original-
ly made in six per cents., with an engagement that
repayment should be made in specie. Ako, reso-
lutions of the Legislature of Alaryland, agreeing
to the proposition of the Commissioners. — Refer-
red to the Secretary of the Treasury.
STANDING RULES AND ORDERS.
The House went into Committee of the Whole
on the standing rules of the House.
Mr. Leib moved the addition of the following
rule:
<* The Speaker shall asiign such places to the ste-
nographen on the floor as shall not Interfere with the
convenience of the House."
Mr. Leib prefaced his motion, by observing that,
in the standing rules proposed, no provision ap^
peared to be made for the admission of stenog-
raphers. They had heretofore been subject to the
will of the Speaker. However great his respect
for the present Speaker, he was of opinion, that
they should not depend for their accommodation
upon the will of any man ; and he thought it be-
came the House, on this occasion, to establish a
precedent which would place those who took the
debates above the caprice of any individual.
Mr. HuGBR moved to amend the motion so as
to read as follows :
** Stenographers shall be admitted, and the Speaker
shall assign such places to them on the floor as shall
not interfere with the convenience of the House."
Mr. Leib agreed to this modification.
The motion was opposed by Mr. Ghiswold,
Mr. RuTLEDGB, Mr. Varndm, Mr. Hemphill, Mr.
T. Morris, Mr. Eustis, Mr. Dana, Mr. Elmer,
and Mr. Goudard; and supported by Mr. Leib,
Mr. S. Smith, Mr. Nicholson, Mr. Claiborne,
Mr. Smilie, Mr. Holland, and Mr. Sprigo.
Mr. HuGER opposed the original motion of Mr.
Leib, but supported the motion, as amended by
himself.
The opponents of the motion declared, that it
did not relate to substance, but merely to form ',
that it was allowed on all hands, that tne debates
should be taken, nnd that stenographers should,
consequently, be admitted. But the single ques-
tion was, how, and under what authority, they
should be admitted. They remarked, that they
had heretofore been admitted by the Speaker, un-
der whose direction they had remained \ that the
407
HISTORY OF CONGRESS.
408
H. OF R.
Standing Rules and Orders.
January. 1802.
Speaker was the only proper authority under
whose direction they ought still to remain ; that,
as the preservation of order and decorum rested
with hini. the stenographers, as well as other per-
sons, should be permitted by him to enter the
House, and be by him excluded, whenever, in his
opinion, the order and a respect for the House re-
quired it. That, in case stenographers deported
tnemselves in a disrespectful manner, or grossly
misrepresented the ideas of members, tne Speaker
was the only person who could effectually cure
the evil ; that there had been, and might again be,
instances of such misconduct ; that, in one case, a
stenographer had entered the House in a state of
intoxication ; another case, a speech of a gentle-
man, from South Carolina, had been perversely
misrepresented, and the stenographer had refused
to correct his errors, for which ne had been ex-
pelled the House ; and that, in another case, the
Speaker, considering himself as misrepresented,
had expelled the stenographer.
Among the opponents of the motion, a great di-
versity of opinion prevailed. Mr. Eustis, Mr.
Varnum, and Mr. Elmer, objected to it. merely
on the ground that it was improper to come to
any solemn decisit)n. which was the less necessa
ry, as the stenograpners already occupied conve-
nient seats, ' from which there was no probability
of their being extruded by the Speaker.
Those who supported the motion, considered its
decision as involving an important point; a point
no less important than, whether tne debates of
that House should be taken with accuracy, and
published without fear or partiality. They averred
It as a fact, that, owing to the unwarrantable
conduct of the Speaker, this had heretofore, at
manv periods, not been the case. The public nad
sought information without being able to get it
It was true, that a stenographer had been expelled
for publishing a speech of a gentleman from South
Carolina ; but it was not for misrepresenting^ that
speech, but for faithfully publishing it; and m the
other case alluded to, a stenographer had been ex-
pelled by the Speaker, for stating, with correct-
ness, what the Speaker had himself said. These
were alarming facts, not to be forgotten, and which
claimed the interposition of the House. If stenog-
raphers should be guilty of indecorum, they could
stul, this rule notwithstanding, be expelled the
House. It was acknowledged that the gentleman
who at present filled the Chair, was entitled to
the full confidence of the House, but it was dan-
gerous to vest arbitrary power in the hands of any
man, and it was peculiarly proper to provide in
fair, for foul weather; and it was added, that
though the proposed rule would not be obligatory
upon a future House, yet it would form a prece-
dent, which they might see fit to respect.
The motion, as modified by Mr. Huoer, was
then agreed to— yeas 47, nays 32.
The Committee then rose, and reported the rules
with the above amendment.
The amendment was immediately taken up;
when,
Mr. RiTTLEDGB moved to amend the report of
the Committee, by making it read as follows :
** Stenographers may be admitted under the direc-
tion of the Speaker, who shall assign to them such
places on the floor as shall not interfere with the con-
venience of the House.''
On this amendment a further debate ensued;
after which, the yeas and nays were called, and
were — yeas 27, nays 51, as follows:
Ys48 — John Campbell, Samuel W. Dana, Franklin
Davenport, Abiel Foster, Calvin Goddard, Roger Gn»-
wold, William Barry Grove, William H. Hill, Benjamin
Huger, Ebenezer Mattoon, Lewis R. Morris, T homas
Morris, Elias Perkins, Thomas Plater, Nathan Read.
John Rutledgc, William Shepard, John Cotton Smith.
Henry Southard, John Stanley, John Stratton, Samuel
Tenney, Thomas Tillinghast, George B. Upham, Peleg
Wadsworth, Benjamin Walker, and Lemuel Williams.
NkTs — ^Willis Alston, John Archer, John Bacon,
Theodonis Bailey, Phanuel Bishop, Robert Brown,
William Butler, Thomas Claiborne, Matthew Clay, John
Clopton, John Condit, Richard Cutts, Thomas T. Davis,
Lucas Elmendorf, Ebenezer Elmer, John A. Hanna,
Daniel Heister, Joseph Heister, William Hoge, James
Holland, David Holmes, George Jackson, William Jones.
Michael Leib, Thomas Lowndes, John Milledge, Sam-
uel L. Mitchill, Thomas Moore, James Mott, Anthony
New, Thomas Newton, jr., Joseph H. Nicholson, John
Smilie, Israel Smith, John Smith, of New York, John
Smith, of Virginia, Josiah Smith, Samuel Smith, Rich-
ard Sprigg, Richard Stanford, Joseph Stanton, jr., John
Stewart, John Taliaferro, jr., David Thomas, Philip R.
lliompson, Abram Trigg, John Trigg, Philip Van
Cortlandt, Joseph B. Varnum, and Isaac Van Home.
Another motion was then made and seconded
to amend the said amendment, by inserting after
the words, "stenographers shall, the folfuwing
words '^ until otherwise ordered by the House :''
And, the question being thereupon taken, it
passed in the negative.
And the main question being put, that the House
do agree to the amendment for an additional rule,
as reported from the Committee of the whole
House, it was resolved in the affirmative — yeas
47, nays 28, as follows :
Ys48 — Willis Alston, John Archer, Theodoms Bai-
ley, Phanuel Bishop, Robert Brown, William Butler,
Thomas Claiborne, Matthew Clay, John Clopton, John
Condit, Richard Cutts, Thomas T. Davis, Lucas Elmen-
dorf, Andrew Gregg, John A. Hanna, Joseph Heister,
William Helms, William Hoge, James Holland, Da-
vid Holmes, Benjamin Huger, George Jackson, Wil-
liam Jones, Michael Leib, John Milledge, Samuel L.
Mitchill, Thomas Moore, Anthony New, Thomas New-
ton, jun., Joseph H. Nicholson, John Smilie, Israel
Smith, John Smith, of New York, John Smith, of Vir-
ginia, Samuel Smith, Henry Southard, Richard Sprigg,
Richard Stanford, John Stanley, Joseph Stanton, jun..
John Stewart, John Taliaferro, jr., David Thomas, John
Thompson, Abram Trigg, John Trigg, and Isaac Van
Home.
Nats — John Bacon, John Campbell, Samuel W.
Dana, John Davenport, Ebenezer Elmer, Abiel Foster,
Calvin Goddard, Roger Gnawold, William B. Grove,
Daniel Heister, Thomas Lowndes, Ebenezer Mattoon,
Lewis R. Morris, Thomas Morris, James Mott, Elias
Perkins, Thomas Plater, Nathan Read, John Rot-
ledge, William Shepard, John Cotton Smith, Josiah
Smith, John Stratton, Samuel Tenney, Thomas Til-
409
HISTORY OF CONGRESS.
410
January, 1802.
Standing Rides and Orders.
H. opR.
linghast, Peleg Wadsworth, Benjamin Walker, and
Lemuel Williams.
Resolved That this House doth agree to the
said standing rules aud orders, amended to read as
folio we th :
Roles and orders for conducting business of the House
of Representatives of the United States.
First — ToucfUng the duty of the Speaker.
He shall take the Chair every day at the hour to
which the House shall have adjourned on the preceding
day ; shall immediately call the members to order ;.and,
on the appearance of a quorum, shall cause the Journal
of the preceding day to be read.
He shall preserve decorum and order ; may speak to
points of order, in preference to other members, rising
from his seat for that purpose, and shall decide ques-
tions of order, subject to an appeal to the House by any
two members.
He shall rise to put a question, but may state it
sitting.
Questions shall be distinctly put in this form, to'wit :
*< As many as arc of opinion that (as the case may be)
say Ay ;" and, after the affirmative voice \a expressed,
*' As many as are of a contrary opinion, say No." If
the Speaker doubts, or a division be called for, the
House shall divide ; those in the affirmative of the ques-
tion shall first rise from their seats, and afterwards
those in the negative. If the Speaker still doubts, or a
count be required, the Speaker shall name two mem-
bers, one from each side, to tell the numbers in the af-
firmative ; which being reported, he shall then name
two others, one from each side, to tell those in the nega-
tive ; which being also reported, he shall rise, and state
the decision to the House.
All committees shall be appointed by the Speaker,
unless otherwise specially directed by the House, in
which case they shall be appointed by ballot ; and if,
upon such ballot, the number required shall not be
elected by a majority of the votes given, the House
shall proceed to a second ballot, in which a plurality of
votes shall prevail ; and in case a greater number than
are required to compose or complete the committee
shall have an equal number of votes, the House shall
proceed to a further ballot or ballots.
In all cases of ballot by the House, the Speaker shall
vote ; in other cases he diall not vote, unless the House
be equally divided, or unless hb vote, if given to the
majority, will make the division equal ; and, in case of
such equal division, the question shall be lost
All acts, addresses, and joint resolutions, shall be
signed by the Speaker ; and all vnrits, warrants, or sub-
poenas, issued by order of the House, shall be under his
hand and seal, attested by the Clerk.
In case of any disturbance or disorderly conduct in
the gallery or lobby, the Speaker (or Chairman of the
Committee of the whole House) shall have power to
order the same to be cleared.
Stenographers shall be admitted ; and the Speaker
shall assign such places to them on the floor, as shall
not interfere with the convenience of the House.
Secondly — Of Decorum and Debate,
When any member is about to speak in debate, or
deliver any matter to the House, hp shall rise from his
iseat, and respectfully address himself to Mr. Speaker.
If any member, in speaking, or otherwise, transgress
the rules of the House, the Speaker shall, or any mem-
ber may, call to order ; in which case, the member so
called to order shall immediately sit down, unless per-
mitted to explain, and the House shall, if appealed to,
decide on the case, but without debate. If there be no
appeal, the decision of the Chair shall be submitted to.
If the decision be in favor of the member called to or-
der, he shall be at liberty to proceed ; if otherwise, and
the case require it, he shall be liable to the censure of
the House.
When two or more members happen to rise at once,
the Speaker shall name the member who is first to
speak.
No member shall speak more than twice to the same
question, without leave of the House, nor more than
once, until every member, choosing to speak, shall
have spoken.
Whilst the Speaker is putting any question, or ad-
dressing the House, none shall walk out of, or across,
the House ; nor, in such case, or when a member ia
speaking, shall entertain private discourse, nor, whilst
a member i|i speaking, shall pass between him and the
Chair.
No member shall vote on any question, in the event
of which he is immediately and particularly interested ;
or in any other case, where he was present when the
question was put.
Upon a division and count of the House on any ques-
tion, no member without the bar shall be counted.
•Every member who shall be in the House when a
question is put shall give his vote, unless the House,
for special reasons, shall excuse him.
When a motion is made and seconded, it shall be
stated by the Speaker, or, being in writing, it shall be
handed to the Chair, and read aloud by the Clerk, be-
fore debated.
Every motion shall be reduced to writing, if the
Speaker or any member desire it.
After a motion is stated by the Speaker, or read by
the Clerk, it shall be deemed to be in the possession of
the House, but may be withdrawn at any time before
a decision or amendment.
When a question is under debate, no motion shall
be received, unless to amend it, to commit it for the
previous question, to postpone it to a day certain, or to
adjourn.
A motion to adjourn shall be always in order, and
shall be decided without debate.
The previous question shall be in this form, " Shall
the main question be now put V It shall only be ad-
mitted when demanded by five members ; and, until it
is decided, shall preclude all amendment and ftirther
debate of the main question.
On a previous question, no member shall speak more
than once without leave.
Any member may call for the division of a question,
where the sense will admit of it.
A motion for commitment, until it is decided, shall
preclude all amendment of the main question.
Motions and reports may be committed at the pleas-
ure of the House.
No new motion or proposition shall be admitted,
under color of amendment, as a substitute for the mo-
tion or proposition under debate.
When a question has been once made and carried,
in the affirmative or negative, it shall be in order for
any member of the majority to move for the reconsid-
eration thereof.
AVhen the reading of a paper is called for, and the
same objected to by any member, it shall be determined
by a vote of the House.
The unfinished business, in which the House was
411
HISTORY OF CONGRESS.
412
H. OP R.
Standing Rules and Orders,
January, 1802.
engaged at the time of the last adjournment, shall have
the preference in the orders of the day ; and no motion
on any other business shall be received, without special
leave of the House, until the former is disposed of.
In all other cases of ballot, than for committees, a
majority of the votes given shall be necessary to an
election; and when there shall not be such majority
on the first ballot, the ballot shall be repeated until a
majority be obtained.
In all cases, when others than members of the House
may be eligible, there shall be a previous nomination.
If a question depending be lost by adjournment of
the House, and revived on the succeeding day, no mem*
ber, who has spoken twice on the day preceding, shall
be permitted again to speak without leave.
Every order, resolution, or vote, to which the con-
currence of the Senate shall be necessary, shall be read
to the House, and laid on the table, on a day preceding
that in which the same shall be moved, unless the
House shall otherwise expressly allow.
Petitions, memorials, and other papers, addressed to
the House, shall be presented by the Speaker, or by a
member in his place ; a brief statement of the contents
thereof shall verbally be made by the introducer, and
shall not be debated or decided on the day of their being
first read, unless where the House shall direct other-
wise ; but shall lie on the table, to be taken up in the
order they were read.
Any fifteen members (including the Speaker, if there
it one) shall be authorized to compel the attendance of
absent members.
Upon calls of the House, or in taking the yeas and
nays on any question, the names of the members shall
be called alphabetically.
Any member may excuse himself from serving on
any committee, at the time of his appointment, if he is
then a member of two other committeest
No member shall absent himself from the service of
the House, unless he have leave^ or be sick and unable
to attend.
Upon a call of the House, the names of the members
shall be called over by the Clerk, and the absentees
noted ; after which the names of the absentees shall be
again called over: the doors shall then be shut, and
those for whom no excuse, or insufficient excuses are
made, may, by order of the Ho«ise, be taken into cus-
tody, as they appear, or may be sent for and taken into
custody, wherever to be found, by special messengers
to be appointed for that purpose.
When a member shall be discharged from custody,
and admitted to his seat, the House shall determine
whether such discharge shall be vrith, or without pay-
ing fees; and, in like manner, whether a delinquent
member, taken into custody by a special messenger,
shall, or shall not, be liable to defray the expense of
said special messenger.
A Sergeant-at-Arms shall be appointed, to hold his
office during the pleasure of the House, whose duty it
shall be to attend the House during its sitting ; to exe-
cute the commands of the House, from time to time ;
together with all such process, issued by authority there-
of, as shall be directed to him by the Speaker.
The fees of the Sergeant-at-Arms shall be : for every
arrest, the sum of two dollars ; for each day*s custody
and releasement, one dollar ; and for travelling expenses
of himself, or a special messenger, going and returning,
one-tenth of a dollar per mile.
Five standing committees shall be appointed at the
commencement of each session, viz :
A Committee of Elections, to consist of seven mem-
bers;
A Committee of Claims, to consist of seven mem-
bers;
A Committee of Commerce and Manu&ctures, to
consist of seven members ;
A Committee of Ways and Means, to consist of seven
members ;
And a Committee of Revisal and Unfinished Buii-
nese, to consist of three members.
It shall be the duty of the said Committee of Eleo
tions to examine and report upon the certificates of
election, or other credentials, of the members returned
to serve in thb House, and to take into their consider-
ation ail such petitions, and other matters touching
elections and returns, as shall or may be presented, or
come in question, and be referred to them by the House.
It shall be the duty of the said Committee of Claims
to take into consideration all such petitions, and mat-
ters or things touching claims and demands on tht
United States, as shall be presented, or shall or may
come in question, and be referred to them by the House}
and to report their opinion thereupon, together with
such propositions for relief therein, as to them shall
seem expedient.
It shall be the duty of the said Committee of Com-
merce and Manufactures, to take into consideration all
such petitions, and matters or things touching the com-
merce and manufactures of the United States, as shall
be presented, or shall or may come in question, and be
referred to them by the House ; and to report, from
time to time, their opinion thereon.
It shall be the duty of the said Committee of Ways
and Means to take into consideration all such reports
of the Treasury Department, and all such propositions
relative to the revenue, as may be referred to them
by the House ; to inquire into the state of the public debt,
of the revenue, and of the expenditures, and to repoit
from time to time, their opinion thereon ; to examine
into the state of the several public departments, and par*
ticularly into the laws making appropriations of moneys,
and to report whether the moneys have been disborsed
conformably with such laws ; and, also, to report, from
time to time, such provisions and arrangements, as may
be nece-ssary to add to the economy of the departments,
and the accountability of their officers.
It shall be the duty of the said Committee of Revisal
and Unfinished Business to exaoune and report what
laws have expired, or are near expirisg, and require to
be revived or further continued ; also, to examine and
report, from the Journal of the last session, ail such
matters as were then depending and undetermined.
No committee shall sit during the sitting of the
House without special leave.
The Clerk of the House shall take an oath for the
true and faithful discharge of the duties of his office, to
the best of his knowledge and abilities ; and shall be
deemed to continue in office until another be appointed.
It shall be the duty of the Clerk of the House, at the
end of each session, to send a printed copy of the
Journal thereof to the Executive, and to each branch
of the Legislature, of every State.
Whenever confidential communications are received
firom the President of the United States, the House
shall be cleared of all persons, except the members and
the Clerk, and so continue during the reading of such
communications, and (unless otherwise directed by the
House) during all debates and proceedings to be had
thereon. And when the Speaker, or any other mem-
413
HISTORY OF CONGRESS.
414
Jauuart, 1802.
Standing RtUe9 and Orders.
H. OF R.
ber, shall inform the House that he has oommunica-
tions to make, which he conceives ought to be kept
secret, the House shall, in like manner, be cleared till
the communication be made: the House shall then de-
termine whether the matter communicated requires
secrecy or not, and take order accordingly.
Tfnrdly.'-Of Bilb.
Every bill shall be introduced by motion for leave, or
by an order of the House on the report of a committee,
and, in either case, a committee to prepare the same
shall be appointed. In cases of a general nature, one
day's notice, at least, shall be given of the motion to
bring in a bill ; and eveiy such motion may be com-
mitted.
Every bill shall receive three several readings in the
House, previous to its passage ; and all bills shall be
despatched in order as they were introduced, unless
where the House shall direct otherwise; but no bill
shall be twice read on the same day, without special
order of the House.
The first reading of the bill shall be for information,
and if opposition be made to it the question shall be,
** Shall Uie bill be rejected V* If no opposition be made,
or if the question to reject be negatived, the bill shall
go to its second reading without a question.
Upon the second reading of the bill, the Speaker shall
state it as ready for commitment or engrossment ; and
if committed, then a question shall be, whether to a select
or standing committee, or to a Committee of the whole
House ; if to a committee of the whole House, the House
shall determine on what day. But if the bill be order-
ed to be engrossed, the House shall appoint the day
when it shall be read the third time.
After commitment and report thereof to the House,
a bill may be recommitted, or at any time before its
passage.
All bills or Jered to be engrossed, shall be executed in
a fair round hand.
When a Mil shall pass, it shall be certified by the Clerk,
noting the day of its passing at the foot thereof.
Fourthly,— Of CommUiees of the Whole House.
It shall be a standing order of the day, throughout the
session, for the House to resolve itself into a Commit-
tee of the whole House on the state of the Union.
In forming a Committee of the whole House, the
Speaker shall leave his chair, and a Chairman to preside
in committee shall be appointed by the Speaker.
Upon bills committed to a Committee of the whole
House, the bill shall be first read throughout by the
Clerk, and then again read and debated by clauses, leav-
ing the preamble to be last considered ; the body of the
MU shall not be defiwed or interlined ; but all amend-
ments, noting the page and line, shall be duly entered
by the Clerk on a separate paper, as the same shall be
agreed to by the committee, and so reported to the House.
After report, the bill shall again be subject to be debated
and amended by clauses, before a question to engross it
be taken.
All amendments made to an original motion in com-
mittee shall be incorporated with the motion, and so
reported.
All amendments made to a report committed to a
Committee of the whole House shall be noted and report-
ed as in the case of bills.
All questions, whether in committee, or in the House,
shall be propounded in the order in which they were
moved, eicept that, infilling up blanks, the largest sum
and the longest time ihall be mat put.
No motion or proposition for a tax, or charge upon
the people, shall be discussed the day in which it is made
or ofiered, and every such proposition shall receive its
first discussion in a Committee of the whole House.
No sum* or quantum of tax or duty, voted by a Com-
mittee of the whole House, shall be increased in the
House, until the motion or proposition for such increase
shall be first discussed and voted in a Committee of the
whole House ; and so in respect to the time of its con-
tinuanoe.
All proceedings, touching appropriations of money,
shall be first moved and diseuased in a Committee oiP
the whole House.
The rales of pioceedings in the House shall be ob-
served in committee, so for as they may be applicable, ex-
cept the rule limiting the times of speaking.
That no person shall be admitted withhi the lobby,
but members of the Senate, officers of the General or
State Governments, foreign Ministers, and such as are
introduced by the members of the House.
No standing rule or order of the House shall be re-
scinded without one day's notice being given of the
motion therefor.
Joint rules and Orders of the Two Houses.
In every case of an amendment of a bill agreed to in
one House, and dissented to in the other, if either House
shall request a conference, and appoint a committee for
that purpose, and the other House shall also appoint a
committee to confer, such committees shall, at a con-
venient hour, to be agpreed on by their Chairman, meet
in the conference chamber, and state to each other ver-
bally or in writing, as either shall chose, the reason of
their respective Houses for and against the amendment,
and confer fireely thereon.
When a message shall be sent from the Senate to the
House of Repesentatives, it shall be announced at the
door of the House, by the Doorkeeper, and shafl be re-
spectfully communicated to the Chair, by the person by
whom it may be sent.
The same ceremony shall be obeerved, when a mes-
sage shall be sent from the House of Representatives to
the Senate.
Messages shall be sent by such persons, as a sense of
propriety, in each House, may determine to be proper.
While bilb are on their passage between the two
Houses, they shall be on paper, and under the signature
of the Secretary or Clerk of each House respectively.
After a bill shall have passed both Houses, it shall be
duly enrolled on parchment, by the Clerk of the House
of Representatives, or the Secretary of the Senate, as
the bill may have originated in the one or the other
House, before it shall be presented to the President of the
United States.
When bills are enrolled, they shall be examined by
a joint committee of one from the Senate, and two from
the House of Representatives, appointed as a standing
committee for that purpose, who shall carefully compare
the enrolment with the engrossed bills, as passed in the
two Houses, and, correcting any errors that may be dis-
covered in the enrolled bills, make their report, forth-
with, to the respective Houses.
After examination and report, each bill shall be signed
in the respective Houses, first by the Speaker of the
House of Representatives, and then by the President of
the Senate.
After a bill shall have thus been signed in each House, it
shall be presented by the said committee to the Presi-
dent of the United States, for his approbation, it being
firit endorsed on the back of the roll, certifying in which
\
415
HISTORY OF CONGRESS.
416
H. OP R.
Proceedings,
Jakdabt, 1802.
House the same originated ; which endorsement shall
be signed by the Secretary or Clerk (as the case may
be) of the House in which the same did originate, and
shall be entered on the journal of each House. The
said committee shall report the day of presentation to
the President, which time shall also be carefully entered
on the journal of each House.
All orders, resolutions, and votes, which are to be pre-
sented to the President of the United States, for his
approbation, shall also, in the same manner, be previ-
ously enrolled, examined, and signed, and shall be pre-
sented in the same manner, and by the same committee,
as provided in case of bills.
When the Senate and House of Representatives shall
judge it proper to make a joint address to the President,
it shall be presented to him in his audience chamber,
by the President of the Senate, in the presence of the
Speaker and both Houses.
Friday, January 8.
Mr. MiLLEDGE, from the Committee of Elec-
tions, reported that the committee had examined
the certificates and other credentials of the mem-
bers returned to serve in this House; and had
agreed to a further report ; which was read, and
ordered to lie on the table.
On motion, it was
Resolved^ That a committee be appointed to in-
quire and report whether any^ and what, altera-
tions are necessary to be made in the "Act respect-
ing quarantine and health laws."
Ordered, That Mr. MitchilLj Mr. Eustis, Mr.
Leib, Mr. Archer, and Mr. Lowndes, be appoint-
ed a committee, pursuant to the said resolution.
On motion, it was
Resolvedj Tnat the President of the United
States be, and he is hereby, requested to cause to
be laid before this House an estimate of the ex-
penses which are necessary for the carrying into
effect the Convention between the United Slates
of America and the French Republic.
Ordered^ That Mr. Randolph and Mr. Bay-
ard be appointed a committee to present the fore-
going resolution to the President of the United
States.
On motion, it was
Resolved^ That the President of the United
States be requested to cause to be laid before this
House such information and documents as are in
positession of the Department of State, relative to
spoliations committed on the commerce of the Uni-
ted States, under Spanish authority; and, also,
relative to the imprisonment of the American
Consul at Saint Jago de Cuba.
Ordered^ That Mr. Bayard and Mr. Randolph
be appointed a committee to present the foregoing
resolution to the President of the United States.
The House proceeded to consider the report of
the comnaittee appointed, on the fourteenth ultimo,
"to inquire into the expediency or inexpediency
of giving further time to persons entitled to mili-
tary land warrants to obtain and locate the same ;
and. also, to report what provision ought to be
made by law to authorize the Secretary of War
to issue military land warrants, and duplicates of
the same, where satisfactory proof is made that
the originals have been lost, destroyed, or obtained
by fraud ;" which lay on the table : Whereupoo,
Ordered, That the farther consideration of the
said report be postponed until Monday next.
The House resolved itself into a Committee of
the whole House on the report of the Secretary
of the Treasury, of the fourth instant, to whom
was referred, on the fourteenth ultimo, the memo-
rial of John Hobby, late Marshal of the district of
Maine ; and, after some time spent therein, the
Committee rose, reported progress, and had leave
to sit again.
Monday, January 11.
Another member, to wit: Seth Hastings,
from Massachusetts, produced his credentials, was
qualified^ and took his seat in the House.
A petition of Thomas Bruff, of Joseph, in the
State of Maryland, denti>t, was presented to the
House and read, praying the aid and patronage of
Congress, to enable the petitioner to complete a
machine for producing perpetual motion, or to per-
form continual revolutions without winding ; the
principles of which he discovered in the year one
thousand seven hundred and ninety. — Referred to
Mr. Southard, Mr. Lowndes, and Mr. Mitchill,
the committee to whom was referred, on the fifth
instant, the petition of Lewis Dupre, on the same
subject.
On amotion made and seconded that the House
do agree to an amendment to the eleventh rule of
the joint rules and orders of the House, relating
to *' Committees of the whole House," so as the
said rule shall read as follows :
'* That no person shall be admitted within the bar of
the lobby, but members of the Senate, officers of the
General or State Governments, and foreign Ministers :*'
And. on the question that the House do agree
to the said amendment, it passed in the negative.
A Message was received from the President of
the United States, transmitting a memorial and
documents of the Commissioners of the City of
Washington ; which were referred to Mr. Nichol-
son, Mr. Bayard, Mr. John Taliaferro, jud.,
Mr. Hastings, and Mr. Alston.
The House again resolved itself into a Commit-
tee of the Whole House on the report of the Sec-
retary of the Treasurv, of the 4th instant, on the
memorial of John Hooby, late Marshal of the dis-
trict of Maine ; and, after some time spent there-
in, the Committee rose and reported a resolution
thereupon ; which was twice read, and agreed to
by the House, as follows :
Resolved^ That it is expedient to appoint a
committee to bring in a bill to authorize and di-
rect the Marshal of the district of Maine to dis-
charge from confinement John Hobby, late Mar-
shal of the said district on his making a surrender
of all his property to the United States.
Ordered^ That Mr. Wadsworth, Mr. John
Trigo, and Mr. Stewart, be appointed a com-
mittee pursuant to the said resolution.
Mr. Jackson, from the committeeto whom was
417
HISTORY OF CONGRESS.
418
Jandart, 1802.
Mediterranean Trade.
H. opR.
referred, on the 7th instant, the memorial of Isaac
Zane, made a report; which was read, and order-
ed to lie on the table.
Mr. Griswold, from the committee to whom
was referred, on the fourth instant, a letter from
Samuel Dexter, late Secretarjr of War, made a re-
port; which was read and considered: Whereupon,
Resolved, That the accounting officers of the
Treasury he authorized to adjust the account of
Samuel Dexter, Esq., for the expense which has
arisen, or which may arise, in defending against
the suit of Joseph Hodgson, brought on the cove-
nants in the lease of a house improved for a War
Office; and that the same be paid from the Treas-
ury of the United States.
Ordered^ That a bill or bilk be brought in, pur-
suant to the said resolution ; and that Mr. Gris-
wold, Mr. Hanna, Mr. Dennis, Mr. Eustis, and
Mr. Nicholson, do prepare and bring in the same.
Mr. Varnum, from the committee appointed,
on the thirtieth ultimo, presented a bill fixing the
Military Peace Establishment of the United States ;
which was read twice and committed to a Com-
mittee of the whole House on Thursday next.
The House resolved itself into a Committee of
the whole House on the bill for the protection of
the commerce and seamen of the United States,
in the Mediterranean and adjoining seas; and, af-
ter some time spent therein, the Committee rose,
reported progress, and bad leave to sit again.
The House went into a Committee of the Whole
on the resolutions of the Senate respecting Cap-
tain Sterret; when, after some consideration there-
of, the Committee rose, and the House refused them
liberty to sit again.
This was done at the suggestion of several mem-
bers, that it would be the most proper course to re-
fer the resolutions to a select committee, for the
purpose of ascertaining the degree of honor, that
It would be fit to bestow upon Captain Sterret, his
officers, and crew. After this vote, a reference was
made to a select committee.
MEDITERRANEAN TRXDJl.
Mr. Ranuolph moved a resolution directing
the Secretary of the Treasury to lay before the
House an estimate of the value of the exports of
the United States, for the last five years, to ports
situated within the Straits of Gibraltar, discrim-
inating articles of American growth from other
productions.
Mr. Randolph observed that he was aware of
the inability of the Secretary to distinguish pre-
cisely the exports of the United States, carried to
the Mediterranean ports of France and Spain,
from those carried to their other ports. But still
he thought it probable that the Secretary might
be able to furnish information that would be valu-
able.
Mr. S. Smith said that when the report was
made by the Secretary, it would be a report of de-
ception. A great part of our trade to the Medi-
terranean had been lopped off in consequence of
the war.
Mr. Smith afterwards remarked that on the re-
port being made, he feared the inquiry would be
7th Con —14
whether we should give up the protection of the
Mediterranean trade, or not. Gentlemen would
probably go into a calculation of figures; and if the
expense of protection appeared to be greater than
the benefit of the trade, they might be for with-
holding protection. There was one description of
trade to the Mediterranean, which we could ob-
tain no estimate of, which was however very im-
portant— the tonnage of American shipping em-
ployed in going from European ports to the Medi-
terranean, and from the Mediterranean to Euro-
pean ports, and American shipping employed be-
tween the EUist Indies and the Mediterranean.
This trade the Government was as much bound
to protect, as it was bound to protect the landed
interest of the country. Still Mr. S. knew not
that it would be proper to oppose the passage of a
resolution that asked for information.
Mr. Smilie knew not what information we
could receive ; but he knew that whatever it should
be, it could do no harm.
Mr. Nicholson remarked that the House would
not be in a worse situation after the report than it
was now. For himself, he was in a state of total
ignorance, and he believed a large part of the
House was also ignorant of the extent of our Medi-
terranean trade. It was impossible that the House
could be deceived by the report ; as, if any nart of
it should be calculated to deceive us, his colleague
would be able to detect its errors. He had heard,
and that too from commercial men, that our Medi-
terranean trade was not valuable, and not worth
the expense of the squadron fitted out to protect
it. He was at a loss to decide between these opin-
ions and those of his colleague.
Mr. MiTCHiLL spoke in iavor of the resolution.
Mr. Griswolu bad no objection to obtaining
the estimate, if desired by gentlemen; not that he
supposed the report could present the information
that was desired. With regard to our Mediterra-
nean trade, it was well known, that lately, owing
to our contest with Algiers, our fish and oil went
in Euronean bottoms, which could not be noticed
in the Treasury statements, as they went first to
other ports.
Mr. EusTiB was perfectly willing to obtain the
report, that the great increase in our trade to the
Mediterranean snpuld be seen; from which its
great value would fully appear, and its claim to
encouragement.
Mr. Varnum suggested the propriety of a refer-,
ence to a select committee, which, from the docu-
ments before the House, could select the, desired
information.
Mr. RuTLEooE feared, that the call for this in-
formation would delay the passage of an import-
ant bill before the House for tne protection of
our Mediterranean commerce. He hoped, in or-
der as promptly as possible to obtain information,
the Secretary of the Treasury would be called
upon for it. With respect to the protection of our
trade in the Mediterranean, it was, in his opinion,
unimportant what its extent was. We were bound
to protect the commerce of our citizens in all its
ramifications, whether great or small.
The resolution was Uien agreed to.
419
HISTORY OF CONGRESS.
420
H. OP R.
Duly on Salt,
January, 1802.
Tuesday, January 12.
A message from the Senate informed the House
that the Senate have passed the bill, entitled "An
act concerning the library for the use of both
Houses of Congress," with several amendments;
to which they desire the concurrence of this House.
Mr. J. C. Smith, from the Committee of Claims,
to whom was referred, on the fourteenth ultimo,
the petition of Caleb Eddy, with instructions to
inauire into the expediency of extending to the
retugees from the British provinces of Canada and
Nova Scotia a further time for exhibiting their
claims for lands, under the "Act for the relief of
the refugees from the British provinces of Canada
and Nova Scotia," made a report ; which was read,
and ordered to lie on the table.
A Message was received from the President of
the United States, transmitting a letter from the
Secretary of State, containing an estimate of the
expenses necessary for carrying into effect the
Convention between the United States of Ameri-
ca and the French Republic; which Message, and
papers accompanying the same, were read, and
ordered to be referred to the Committee of Ways
and Means.
Mr. Wadsworth, from the committee appoint-
ed yesterday, presented a bill authorizing the dis-
charge of John Hobby, from his confinement ;
which was read twice and committed to a Com-
mittee of the whole House.
DUTY ON SALT.
Mr. Bayard moved the following resolution:
" Resolvedy That the Committee of Ways and Means
be instructed to inquire into the expediency of reduc-
ing the duty on salt"
On which motion, the previous question being
called for by five members, to wit: "Shall the
main question to agree to the said motion, be now
put ?"
And debate arising thereon, Mr. Bayard, the
member from Delaware, was called to order by
Mr. Randolph, one of the members from Virginia,
on an opinion that he was debating the merits of
the main question ; and the Speaker having de-
cided that the member from Delaware was in order,
an appeal was made to the House from the deci-
sion of the Chair; and, on the question, "Is the
member from Delaware in order?" it was resolved
in the affirmative. And then, after farther debate,
the previous question was taken, to wit. "Shall
the main question to agree to the said motion be
now pur?" and passed in the negative — yeas 41,
nays 49, as follows :
Yeas — ^James A. Bayard, Thomas Boude, John
Campbell, Matthew Clay, Manasseh Cutler, Samuel
W. Dana, John Davenport, John Dennis, William
Eustis, Abiel Foster, Calvin Goddard, Roger Gris-
wold, William Barry Grove, Seth Hastings, Joseph
Hemphill, William Hoge, Benjamin Huger, Thomas
Lowndes, Ebenezer Mattoon, Lewis R. Morris, Thomas
Morris, Joseph Pierce, Elias Perkins, Thomas Plater,
Nathan Read, John Rutledge, William Shcpard, John
Smilie, John Cotton Smith, John Stanley, John Stratton,
Benjamin Tallmadge, Samuel Tenney, David Thomas,
Thomas Tillinghast, George B. Upham, Killian K. Van
Rensselaer, Peleg Wadsworth, Benjamin Walker.
Lemuel Williams, and Henry Woods.
Nais — Willis Alston, John Archer, John Bacon,
Theodorus Bailey, Phanuel Bishop, Robert Brown,
William Butler, Thomas Claiborne, John Clopion.
John Condit, Richard Cutts, Thomas T. Davis, Lucas
Ehnendorf, Ebenezer Ehner, John Fowler, Andrew
Gregg, Daniel Heister, Joseph Heister, William Hehns,
James Holland, George Jackson, Charles Johnson,
William Jones, Michael Leib, John Milledge, Samuel
L. Mitchill, Thomas Moore, James Mott, An&onj New,
Thomas Newton, jun., Joseph H. Nicholson, John
Randolph, jun., Israel Smith, John Smith, of New Yori,
John Smith, of Virginia, Josiah Smith, Samuel Smith.
Henry Southard, Richard Sprigg, Richard Stanford,
Joseph Stanton, jun., John Stewart, John Taliaferro, jr„
Philip R. Thompson, Abram Trigg, John Trigg. Philip
Van Cortlandt, John P. Van Ness, and Joseph B. Var-
num.
Wednesday, January 13.
Ordered, That so much of the report of the
Committee of Revisal and Unfinished Business
as relates to the claim of the legal representatire-
of Saniuel Lapsley, deceased, be referred to the
Committee of Claims.
On motion, it was
Ordered, That the Committee of Ways and
Means be authorized to report by bill or bills, or
otherwise, on all such matters, as shall, from time
to time, be referred to them by the House.
A bill was reported which prorides for indem-
nifying Samuel Dexter for any expenses that may-
be incurred by him in consequence of the suit
instituted by Joseph Hodgson, and for any jud«T-
ment that may be rendered in that suit. The bSl
was read twice, and referred to a Committee of the
whole House.
The House went into Committee of the Whole
on the bill for the relief of John Hobby.
Mr. Gregg proposed an amendment to the bill
which would provide the same relief for a collec-
tor of excise in the county of Northampton, Slate
of Pennsylvnnia, who was a delinquent for about
two thousand dollars, and had been confined in
jail for more than two years.
Messrs. Rutledge, Mason, and Huger, opposed
the amendment. They urged the propriety of
deciding upon every case of this kind singly.
They stated the importance of being ver)^ cau-
tious in granting relief to the receivers of public
money who embezzled or squandered it awav.
The amendment was not agreed to.
Messrs. Stanley, Bacon, and Elmendorf, op-
posed the bill. They thought such defaulters
should be rigorously dealt with, to deter others
from violating the public confidence reposed in
them.
Messrs. Davis, Perkins, Wadsworth. and S.
Smith, advocated the bill.
The Committee rose, and reported the bill with
amendments, which were agreed to, and it was
ordered to be engrossed for a third reading to-mor-
row, forty-four voting in favor of it.
Mr. Randolph, with leave, presented a bill to
amend an act, entitled, *An act to lay and col-
421
HISTORY OF CONGRESS.
422
January, 1802.
Proceedings,
H. OF R.
lect a direct tax ;" which was read twice, and made
the order of the day for Friday, and ordered to be
printed.
This bill provides for the collection of the ar-
rearages of tnat tax.
The House then took up the bill respecting
the Library, as amended by the Senate : they
agreed to some of the amenameots and disagreed
to others.
The Senate proposed that the Librarian should
be appointed by the President, which the House
did not agree to.
Mr. S. Smith observed that the law regulating
coin would expire at the end of this session of
Congress, and that great inconvenience would be
experienced by the banks and individuals ; as for-
eign gold was not to be received in payment of
duties, dbc. He therefore moved that a committee
be appointed to bring in a bill to continue in force
the present law on the subject of foreign coin.
The motion was agreed to, and then the House
adjourned.
Thursday, January 14.
Another member, to wit: John Dawson, from
Virginia, appeared, was qualified, and took his
seat in the House.
An engrossed bill authorizing the discharge of
John Hobby from his confinement was read the
third time and passed.
Mr. Randolpa. from the Committee of Ways
and Means, presented a bill to prevent intrusions
on the public lands, and for other purposes ; which
was read twice, and committed to a Committee
of the whole House on Monday next.
The House resolved itself into a Committee of
the Whole on the report of the Secretary of
State, to whom was referred, on the 14th ultimo,
the memorial of Pbilip Sloan ; and, after some
time spent therein, the Committee rose and re-
ported thereupon; which was twice read, and
agreed to by the House, as follows :
Resolved^ That a committee be appointed to
bring in a bill to authorize the payment of two
thousand eight hundred dollars to' Philip Sloan,
from the Treasury of the United States, as a full
compensation for his claims.
Ordered, That Mr. Jones, Mr. Clopton, and
Mr. HuGER, be appointed a committee, pursuant
to the said resolution.
Mr. Randolph, from the Committee of Ways
and Means, presented a bill making appropriations
for the support of Government lor the year one
thousand eight hundred and two; which was
read twice, and committed to a Committee of the
whole House on the first Monday in February
next.
The House proceeded to consider the report of
the committee to whom was referred, on ine 7th
instant, the petition of Isaac Zane, wnich lay on
the table : Whereupon,
Resolved, That a committee be appointed to
bring in a bill authorizing the President of the
United States to convey, in fee simple, to Isaac
Zane, six sections of land, otone square mile
each, within the Northwestern Territory, on any
lands not heretofore appropriated, and that the
Indian title thereto has been extinguished.
Ordered, That Mr. Jackson. Mr. Fearing, and
Mr. Van Horne, be appointed a committee pur-
suant to the said resolution.
The Speaker laid before the House a letter
from the Secretary of State, enclosing certain
laws of the Northwestern and Indiana Territories
of the United States, in pursuance of a resolution
of this House, of the twenty-fourth ultimo ; which
were read and ordered to lie on the table.
The House went into a Committee of the Whole
on the bill to amend the act, entitled "An act re-
specting fugitives from justice, and persons esca-
ping from the service of their masters ;" and, after
some time spent therein, the Committee rose, re-
ported progress, and had leave to sit again.
Friday, January 15.
A petition of sundry citizens of the District of
Columbia, in opposition to a petition from other
citizens of the said District, presented on the
twenty-third ultimo, "praying the aid and patron-
age of Congress in the establishment of a com-
pany for the building of a bridee across the Poto-
mac river, from the western and southern extrem-
ity of the Maryland Avenue, in the City of Wash*
ington, to the nearest and most convenient point
of Alexander's Island, in the said river," was pre-
sented to the House and read. — Referred to the
committee appointed, on the eighth ultimo, to in-
quire whether any. and, if any, what, alterations
or amendments may be necessary in the existing
government and laws of the District of Columbia.
Ordered, That so much of the Message from
the President of the United States, of the twentv-
second ultimo, as relates to a schedule of the whole
number of persons within the district of Tennessee,
be printed for the use of the members.
A message from the Senate informed the House
that the Senate insist on their amendments, dis-
agreed to by this House, to the bill, entitled "An
act concerning the library for the use of both
Houses of Congress," and aesire a conference with
this House on the subject-matter of the said amend-
ments ; to which conference the Senate have ap-
pointed managers on their part.
Mr. S. Smith, from the Committee of Commerce
and Manufactures, made report on the petition of
Thomas K. Jones, of Boston. It was in favor of
granting the drawback on ten pipes of wine re-ex-
ported.— Referred to the Committee of the Whole
on Monday next.
Mr. Jones presented a petition from the assessors
of the direct tax in the city and county of Phila-
delphia, prayingforadditional compensation. — Re-
ferred to a committee of three, viz : Mr. Jones, Mr.
John C. Smith, and Mr. Smith of New York.
Mr. Orego moved that the return of the census
of Tennessee, should be printed, to make the do-
cuments on that subject complete. Agreed to.
Mr. Dawson (who took his seat yesterday) ob-
served, that he understood some gentlemen were
in doubt whether he was entitled to a seat. He
423
HISTORY OF CONGRESS.
424
H. OP R.
Fugitive Bill.
January, 1802.
wished the Committee of Elections to make an
early report, that if the employ with which he had
been honored was incompatible with the character
of a legislator, according to the Constitution which
he had sworn to support, it would be so declared ;
and that the district which had chosen him might
have an opportunity of again expressing their sen-
timents in the choice of a representative.
Mr. S. Smith observed, there could be no diffi-
culty in the gentleman's taking his seat until the
Committee of Elections should make their report.
Mr. MiLLEDGE, chairman of the Committee of
Elections, mentioned that there were no credentials
relative to Mr. Dawson before the committee.
Mr. M. had written to the Governor of Virginia, on
Monday last, on the subject, and expected an an-
swer by Monday next.
FUGITIVE BILL.
The House then resolved itself into Committee
of the Whole on the bill respecting fugitives from
justice, and persons escaping from the service of
their masters.
The bill contemplates inflicting a penalty of five
hundred dollars on any person harboring, conceal-
ing, or employing, runaway slaves. Every per-
son employing a black person, unless he had a
certificate with a county seal to it, or signed bv a
justice of the peace, would be liable to the penalty.
The debate on the bill was protracted until after
three o'clock.
It was opposed by Messrs. Varnum, Bacon, T.
Morris, EusTis, Smilie, Goddard Dana, Hemp-
hill, and Southard, who were in general unwill-
ing that he who should employ a black person who
was a stranger to him, and did not, within one
month,publish in two newspapersan advertisement
giving a description of the person so employed,
should incur a penalty of five hundred dollars.
They did not wish to compel every free person of
color in the Middle and Eastern States to procure
and carry about with them such a certificate.
The bill was supported by Messrs. Nicholson,
HuGER, RuTLEDGE, Van Ness, Claiborne, and
Holland. They considered it a great injury, to
the owners of thatspecies of property, that runaways
were employed in the Middle and Northern States,
and even assisted in procuring a living. They
stated that when slaves ran away and were not re-
covered it excited discontent among the rest.
When they were caught and brought home they in-
formed their comrades how well they were received
and assisted, which excited a disposition in others to
attempt escaping, and obliged their masters to use
greater severity than they otherwise would. It was,
they said, even on the score of humanity, good poli-
cy in those opposed to slavery to agree to this law.
A motion was made to strike out the second sec-
tion of the bill, which would create therein and
inflict the penalty for employing a person of color
who had not a certificate of his freedom. The
Committee were equally divided, thirty-eight vo-
ting for striking out and thirty-eight agamst ; so the
motion was not carried.
The Committee then rose, and a motion was
made to adjourn, but did not succeed. The House
took up the amendments of the Committee, but, be-
fore they got through them, an adjournment was
carried, and the House adjourned until Monday.
Monday, January 18.
The Speaker laid before the House a letter from
Samuel Coleman, Assistant Clerk to the Council
of the State of Virginia, enclosing a return of the
election of John Dawsqn, to serve as a Repre-
sentative for the said State, in the seventh Con-
gress of the United States ; which were read, and
ordered to be referred to the Committee of Elec-
tions.
A petition of John Cleves Symmes was presented
to the House and read, praying that Congress will
accept of the release and relinquishment of the
petitioner, to the United States, of all his legal and
equitable claim, and colorable right, by .patent or
contract, statute or possession, whatsoever, to a cer-
tain quantitv of land, lying north of the lands
granted by the United States, on a contract with
the petitioner and his associates, in the Territory
Northwest of the river Ohio, for the reasons and
on the terms and conditions therein specified. — Re-
ferred to the committee to whom was referred, on
the eighth ultimo, the petition of James McCashen
and others; and that Mr. D. Heister, and Mr.
Claiborne, be added to the said committtee.
A petition of sundry citizens of the District of
Columbia, in opposition to the praver of a petition
from sundry other citizens of the said 'district, pre-
sented on the twenty-ninth ultimo, for the erection
of a bridge from the western and southern ex-
tremity of the Maryland avenue, in the City of
Washington, to the nearest and most convenient
point of Alexander's Island, in the river Potomac,
was presented to the House and read. — Referred to
the committee appointed, on the eighth ultimo, to
inquire whether any, and, if any, wbat, alterations
or amendments may be necessary in the existing
government and laws of the District of Columbia.
The Speaker laid before the House a letter and
report from the Secretary of the Treasury, accom-
panying a statement of the value of the exports of
the United States, to the ports of Italy, Gibraltar,
and the Barbary Powers, for each of the five years
preceding the thirtieth of September, one thousand
eight hundred and one. in pursuance of the resolu-
tion of this House of tne eleventh instant; which
were read, and ordered to be referred to the Com-
mittee of the whole House to whom was commit-
ted, on the seventh instant, the bill for the protec-
tion of the commerce and seamen of the United
States in the Mediterranean and adjoining seas.
The House resolved itself into a Committee of
the whole House on the bill fixing the Military
Peace Establishment of the United States ; and,
after some time spent therein, the Committee rose,
reported progress, and had leave to sit again.
The House proceeded to consider the message
from the Senate of the fifteenth instant, on the
subject-matter of the amendments depending be-
tween the two Houses to the bill, entitled "An act
concerning the Library for the use of both Houses
of Congress ;" Whereupon,
425
HISTORY OF CONGRESS.
426
January, 1802.
Fugitive Bill,
H.opR.
J{e9olved, That this House doth insist on their
disagreement to the fourth, sixth, and seventh
amendments of the Senate, disagreed to by this
House, and insisted on by the Senate to the said
bill.
Resolved^ That this House doth agree to the
conference desired by the Senate on tne subject-
matter of the said amendments, and that Mr.
Bayard, Mr. Nicholson, and Mr. Dawson, be
appointed Managers at the said conference on the
part of this House.
FUGITIVE BILL.
The House resumed the consideration of the
amendments reported on the fifteenth instant from
the Committee of the whole House to the bill to
amend the act, entitled, "An act respectingfus^i-
tives from justice, and persons escaping from tne
service of their masters ;" and the same being
severally twice read, were, on the question being
put thereoD, agreed to by the House.
The said bul was then further amended at the
Clerk's table : and on the question that the said
bill, with the amendments, be engrossed and read
the third time, it passed in the negative — yeas
43, nays 46, as follows :
YxAs — Willis Alston, James A. Bayard, William
Butler, Thomas Claiborne, Matthew Clay, John Clop-
ton, Thomas T. Davis, John Dawson, John Dennis,
William Dickson,'^Lucas^lmendorf, Ebenezer Elmer,
John Fowler, William B. Giles. Edwin Gray, William
Barry Grove, Daniel Heister,Hloeeph Heister, John
Holland, Benjamin Huger, George Jackson, Charles
Johnson, Michael Leib, Thomas Lowndes, John Mil-
ledge, Thomas Moore, Lewis RHMorris, Anthony New,
Tliomas Newton, jr., Joseph H. Nicholson, Thomas
Plater, John Randolph, jr., John Rutledge, John Smith,
of Virginia, Samuel Smith, Richard Sprigg, Richard
Stanford, John Stratton, Davidf^ Thomas, Philip R.
Thompson, Abram Trigg, John Trigg, JohnT^. Van
Ness.
Nats — John Bacon, Phanuel Bishop, Robert Brown,
John Condit, Manasseh Cutler, Richard Cutts, Samuel
W. Dana, John Davenport William Eustis, Abiel Fos-
ter, Calvin Goddard, Andrew Gregg, Roger Griswold,
John A.Hanna, Seth Hastings, Joseph Hemphill, ASch-
ibald Henderson, William Hoge, Ebenezer Mattoon,
Samuel L. Mitchill, Thomas Morris, Jas. Mott, Joseph
Pierce, Elias Perkins, Nathan Read, William 8hep-
ard, John Smilie, Israel Smith, John Cotton Smith,
John Smith, of New York, Josi^ Smith, Heniy South-
ard, JohifjStanley, Joseph Stanton, jr., John Stewart,
Benjamin Tallmadge, Samuel Tenney, Thomas Tilling-
hast, George B. Upham, Joseph B. V amum, Isaac Van
Home, KiUian K. Van Rensselaer, Peleg Wadsworth,
Benjamin Walker, Lemuel Williams, Henry Woods.
And so the said bill was rejected.
TuEsuAY, January 19.
A memorial of Fnlwar Skipwith, late Consul
General of the United States at Paris, was pre-
sented to the House and read, praying the liqui-
dation and settlement of a claim for official ser-
vices rendered, and advances of money made by
the memorialist, in the capacity aforesaid, on ac-
count of the United States. — Referred to the Sec-
retary of State, with instruction to examine the
same, and report his opinion thereupon to the
House.
A petition of sundry inhabitants of the city of
Washington, in the District of Columbia, was
presented to the House and read, praying the aid
and patronage of Congress to enable the petition^
ers and others to connect the waters of tne river
Potomdc and the Eastern Branch of the said river,
by opening and completing a canal along the Ti-
ber creek, through the low ground at the foot of
the Capitol Hill, in said city. — Referred to the
Committee appointed on the eighth ultimo, to in-
quire whether any, and, if any, what, alterations
or amendments may be necessary in the existing
government and laws of the District of Columbia.
Mr. Stanley, one of the members from North
Carolina, presented to the House a petition of
Memucan Hunt, William Polk, and Pleasant
Henderson, for themselves and others, addressed
to the General Assembly of that State ; also, sun-
dry resolutions of the said Assembly, respecting a
claim of the petitioners for the value of certain
lands in the State of Tennessee, held under grants
from the State of North Carolina, prior to the
cession of the said fands to the United States,
accepted by an act of Congress passed the second
day of April, one thousand seven hundred and
ninety ; which were received and read : Where-
upon,
Ordered, That the said petition and resolutions
be referred to Mr. Stanley, Mr. RuTLcnoE, Mr.
Dawson, Mr. Dickson, and Mr. Fowler ; that
they do examine the matter thereof, and report the
same, with their opinion thereupon, to the House.
The Speaker laid before the House a letter
from the Secretary of the Treasury, accompany-
ing his report on a letter from the Governor of
Maryland, and sundry documents respecting loans
from the said State to the Commissioners of the
City of Washington, referred to him bv order of
the House, on the seventh instant ; wnich were
read, and ordered to be referred to the committee
appointed on the eleventh instant, to whom was
referred a Message of the President of the United
States on the same subject.
Mr. Tallmauoe, from the committee to whom
were referred, on the eleventh instant, the resolu-
tions of the Senate, ''in respect to Lieutenant
Sterret, the officers, and crew, of the United States
schooner Enterprize," made a report ; which was
read, and, togetner with the said resolutions, or^
dered to be committed to a Committee of the
whole House to-morrow.
The House again resolved itself into a Com-
mittee of the whole House on the bill fixing the
Military Peace Establishment of the United
States; and, after some time spent therein, the
Committee rose and reported several amendments
thereto.
Ordered^ That the said bill, with the amend-
ments, do lie on the table.
Weonesoay, January 20.
A petition of sundry citizens of the District of
Columbia, in opposition to the prayer of a petition
427
HISTORY OF CONGRESS.
428
H. OP R.
Military Peace Establishment.
January. 1802.
from sundry other citizens of the said District, I
E resented on the twenty-ninth ultimo, ''that a
ridge may be erected from the western and south-
ern extremity of Maryland avenue, in the City of
Washinj?ton, to the nearest and most convenient
point of Alexander's Island, in the river Poto-
mac," was presented to the House and read. — Re-
ferred to the committee appointed, on the! eighth
ultimo^ to inquire whether any, and, if any, what,
alterations are necessary in tne existing govern-
ment and laws of the District of Columbia.
Mr. Fearing presented a law of the Legisla-
ture of the Territory Northwest of the Ohio, for
the division of that Territory into three Govern-
ments, the Western, Middle, and Eastern, and
Eointing out the boundaries for States as laid out
y the Old Confederation. Mr. F. moved to refer
it to a select committee.
Mr. Giles observed, that the law would place
the people of that Territory in a very disagreeable
situation, and it should be decided as early as pos-
sible. He had in his hands petitions signed by
above one thousand inhabitants of that Territory
against the law. The law would remove them
further from a State government. Its only ten-
dency would be to perpetuate the office of Gov-
ernor and the Territorial Legislature.
Mr. Davis moved to refer the law to a Com-
mittee of the whole House, as it would give an
earlier decision to the subject.
It was referred to the Committee of the Whole,
made the order of the day for to-morrow, and or-
dered to be printed.
Mr. Giles then presented the petitions he al-
luded to, and moved a reference to the Commit-
tee of the Whole, and one of them to be printed;
which was agreed to.
Mr. Davis mentioned that he had received a
communication from the Treasury Department
respecting the location of military land warrants,
which he moved should be printed ; agreed to.
Mr. Jackson moved that the ordinance of 1787,
respecting the Northwestern Territory, should be
printed for the use of the members ; which wa*i
agreed to.
On motion, it was
Resolved. That the Committee of Ways and
Means be authorized to cause to be printed under
their inspection, all such reports and documents,
touching the matters referred to them, as may ap-
pear necessary to the committee, previous to the
presentation of the same to the House.
MILITARY PEACE ESTABLISHMENT.
The House then took up the amendments to the
bill fixing the Military Peace Establishment.
Mr. Bayard moved to strike out the office of
Brigadier General. He said there could not be
any occasion for such an officer, as the men were
scattered oyer the whole extent of our frontiers
and Atlantic coast, and placed in small divisions.
This brought on a debate which was continued
until after three o'clock.
The question was taken by yeas and nays for
striking out— 36 against it, 54 for it, as follows :
Yeas — Willia Alston, James A. Bayard, William
Butler, Matthew Clay, Manasseh Cutler, Samuel W.
Dana, John Davenport, Thomas T. Davis, John Den-
nis, William Dickson, Ebenezer Elmer, Roger Gris-
wold, William Barry Grove, Seth Hastings, Archibald
Henderson, Thomas Lowndes, Ebenezer Mattoon,
Thomas Moore, Lewis R. Morris, Joseph H. Nichol-
son, Elias Perkins, John Randolph, jr., John Rutledge,
William Shepard, John Cotton Smith, Josiah Smith,
John Stanley, Joseph Stanton, jr., John Stratton, Ben-
jamin Tallmadge, Samuel Tenney, Thomas Tillinghast.
Geoi^e B. Upham, John P. Van Ness, and Lemuel
Williams.
Nats — ^John Bacon, Theodoras Bailey, Phanuel
Bishop, Richard Brent, Robert Brown, John Camp-
bell, Thomas Claiborne, John Clopton, John Condit,
Richard Cutts, John Dawson, Lucas Elmendorf, Wil-
liam Eustis, John Fowler, William B. Giles, Calvin
Goddard, Edwin Gray, Andrew Gregg, John A. Han-
na, Daniel Heister, Joseph Heister, William Helms,
Joseph Hemphill, William Hoge. David Holmes, Ben-
jamin Huger, George Jackson, Charles Johnson, Wil-
liam Jones, Michael Leib, John Milledge, Samuel L.
Mitchill, James Mott, Anthony Newton, jr., Joseph
Pierce, Nathan Reid, John Smilie, Israel Smith, John
Smith, of Vu-ginia, Samuel Smith, Henry Southard,
Richard Sprigg, Richard Stanford, John Stewart, John
Taliaferro, jr., Philip R. Thompson, Abram Trigg,
John Trigg, Philip Van Cortlandt, Joseph B. Varnum,
Isaac Van Home, Benjamin Walker, and Hemy
Woods.
Mr. Bayard moved to strike out the office of
Colonel, and add one to the number of Majors j
but it was not agreed to.
The bill proposed to give those officers who
should be deranged, three months' pay when they
were dismissed from the service.
Mr. Griswold moved to strike out "three
irionths," that a greater compensation miVht be
given to those wno have grown gray in the ser-
vice of their country. He thought more was due
to them than what the bill proposed to allow.
Mr. Varnum said, his own opinion was in favor
of a greater compensation ; but he owed it to a
majority of that House to yield his opinion to
what they had fixed it at. He said there was
nothing due to those officers, as nothing had been
promised them.
Mr. Mitchill was in favor of striking out, for
the purpose of inserting a compensation propor-
tionate to the length of time the officers had been
in service.
Mr. Bacon differed as to the principle laid
down by gentlemen. When officers were wanted
there was great competition for the appointments.
They were desirous to receive the pay and emolu-
ments. He did not think there was anyihinff due
to them. ^
Mr. S. Smith was for pursuing some system in
this business, and keeping to a uniform principle.
When a reduction was made in 1796, six months'
pay and subsistence was granted. He would be
in favor of that at this time.
Mr. Dana believed those officers accepted their
appointments under an idea of its being the per-
manent Peace Establishment, and therefore some-
thing was due to them when dismissed from the
public service.
429
fflSTORY OF CONGRESS.
430
January, 1802.
Military Peace Establishment.
H. opR.
Mr. Smilte said, they knew the terms on which
they entered the service, and they entered Tolun-
tariiy. How could anything, then, be due to
them ? It would be more proper to give the men
something when disbanded tnan to provide for
the officers. It was not long since that about
forty were wanted, and there were thirteen hun-
dred applications. Men could not always be ob-
tained. When the ten regiments were ordered to
be raised, the officers were soon obtained ; but,
after recruiting a long time, the proper number of
men could not ie procured.
The question for striking out was taken by yeas
and nays — for it 26, against it 56, as follows :
Yeas — James A. Bayard, Manasseh Cutler, Samuel
W. Dana, John Davenport, William Eiutia, Calvin
Goddard, Roger Grisvrold, William Barry Grove, Jo-
seph Hemphill, Archibald Henderson, Charles John-
son, Thomas Lowndes, Samuel L. Mitchill, Lewb R.
Morris, Thomas Morris, Elias Perkins, Nathan Read,
John Rutledge, William Sbepard, John Cotton Smith,
John Stanley, Benjamin Tallmadge, Samnel Tenney,
George B. Upham, Benjamin Walker, and Lemuel
Williams.
Nats — Willis Alston, John Bacon, Theodorus Bai-
ley, Phanuel Bishop, Richard Brent, Robert Brown,
William Butler, Thomas Claiborne, Matthew Clay,
John Clopton, John Condit, Richard Cutts, Thomas T.
Davis, John Dawson, William Dickson, Lucas Elmen-
dorf, Ebenezer Elmer, John Fowler, William B. Giles,
Edwin Gray, Andrew Gregg, Seth Hastings, Daniel
Heister, Joseph Heister, William Helms, William
Hoge, David Holmes, George Jackson, William Jones,
Michael Leib, Ebenezer Mattoon, John Milledge,
Thomas Moore, James Mott, Anthony New, Thomas
Newton, jr., Joseph H. Nicholson, John Randolph, jr.,
John Smilic, Israel Smith, John Smith, of Virginia,
Joeiah Smith, Samuel Smith, Henry Southard, Rich-
ard Sprigg, Richard Stanford, John Stewart, John Tal-
iaferro, jr., Thomas Tillinghast, Philip R. Thompson,
Abram Trigg, John Trigg, Philip Van Cortlandt, John
P. Van Ness, Joseph B. Varnum, and Isaac Van
Home.
Mr. S. Smith made a motion to raise it to the
same as was granted in 1796.
Mr. EusTis advocated it, but it was not carried,
there being 26 for it, and 45 a^inst it.
Mr. S. Smith moved a section repealing former
laws that came within the purview of this.
Mr. Batard did not think such a section neces-
sary; at any rate, he wished time to consider what
laws came within the purview of this, before he
agreed to it.
Mr. Giles advocated the section ; which was
agreed to.
The bill was ordered to be engrossed for a third
reading to-morrow.
Thursday, January 21.
A petition of Anthony Addison, of Prince
Greorge's county, in the State of Maryland, was
presented to the House and read, praymg that he
may be authorized by law to erect a bridge over
the Eastern Branch of the river Potomac, at, or
near the place where a ferry belonging to the pe-
titioner is now kept.
Ordered, That the said petition be referred to
the committee appointed, on the eighth ultimo, to
inquire whether any, and, if any, what, alterations
or amendments may be necessary in the existing
government and laws of the District of Colum-
bia.
On motion of Mr. Nicholson, it was
Resolved, That the committee appointed, on the
fourteenth ultimo, " to inquire and report whether
moneys drawn from the Treasury have been
faithfully applied to the objects for which they
were appropriated, and whether the same have
been regularly accounted for ; and to report, like-
wise, whether any further arrangements are ne-
cessary to promote economy, enforce adherence to
Legislative restrictions, and secure the accounta-
bility of persons intrusted with public money,"
be, and they are, authorized to cause to be printed,
for the use of the members of the House, such
papers and documents relating to the subjects of
their inquiry us they may think necessary.
Mr. Davenport, from the Committee of Re-
visal and Unfinished Business, presented a bill to
continue in force an act supplementary to an act,
entitled ^'An act regulating foreign coins, and for
other purposes ;" which was read twice and com-
mitted to a Committee of the whole House on
Monday next.
A message from the Senate informed the House
that the Senate adhere to their fourth and sixth
amendments, and recede from their seventh
amendment to the bill, entitled "An act concern-
ing the Library for tne use of both Houses of
Congress," on their disagreement to which this
House hath insisted.
On motion, it was
Ordered, That Mr. Nicholson be excused
from serving on the committee appointed, on the
fourth instant, ^ to inquire whether any, and what,
alteration should be made in the Judicial Estab-
lishment of the United States; also, to report a
provision for securing the impartial selection of
juries in the courts of the United States," and
that Mr. Giles be appointed of the said commit-
tee, in his stead.
Mr. Bayard, from the managers appointed on
the part of this House to attend a conference with
the Senate on the subject-matter of the amend-
ments depending between the two Houses to the
bill, entitled ^'An act concerning the Library for
the use of both Houses of Congress," made a re-
port 5 which was read and considered : Where-
upon,
Resolved, That this House doth recede from
their disagreement to the fourth and sixth amend-
ments, adhered to by the Senate to the said bill.
MILITARY PEACE ESTABLISHMENT.
An engrossed bill fixing the Military Peace Es-
tablishment of the United States was read the
third time.
Mr. Bayard observed that he should vote for
the bill, because he thought it better than the for-
mer system, and it would be of much saving as to
expense. He was, however, very far from being
pleased with a part of that bill, that part relating
431
HISTORY OF CONGRESS.
432
H. OP R.
Mediterranean Trade,
Jancary, 1802.
to the Brigadier General and his aid de camp.
This office he knew to be a perfect sinecure ; no
such officer was necessary ; he could have no du-
ties to perform. He would not. however, vote
against the whole bill on account of this.
Mr. RuTLEDGE. — The first section was very dis-
agreeable to him, as it went to the establishment
of a perfect sinecure. He was willing to do hom-
age to the merit of the officer who was to benefit ;
but he rather thought it would be more consonant
with justice, if money must be needlessly sported
with, to suffer such money to be given to those
who have been long in service — some fifteen or
twenty years — and who are now by this bill sud-
denly forced to quit their present, to seek some
new way of obtaining a livelihood, in circumstan-
ces, many of them perhaps, not enviable.
Mr. R. was not pleased with the so great reduc-
tion of the artillery ; he thought the retention of
the artillery of more importance than that of the
infantry. He had hoped the artillepy would have
been retained to keep in order the forts already
built in different part of the United States ; the
small number remaining was qaite incompetent
to preserving them in order, or preserving them
from decay. The Secretary of War mentions one
fort in South Carolina. There are, sir, four forts in
the harbor of Charleston alone, some of which
must go to decay. He should vote for the bill, be-
cause it went to make great reductions of expense,
which reductions circumstances now allow us to
afford ; but the sinecure was obnoxious to him,
and he was not pleased with the reduction of the
artillerv.
On the question that the bill do pass, it was re-
solved in the affirmative — yeas 77, nays 12. as fol-
lows :
YsA8 — Willis Alston, John Bacon, James A. Bay-
ard, Phanuel Bishop, Richard Brent, Robert Brown,
William Butler, John Campbell, Thomas Claiborne,
Matthew Clay, John Condit, Manasseh Cutler, Rich-
aid Cutts, Samuel W. Dana, Thomas T. Davis, John
Dawson, John Dennis, William Dickson, Lucas £1-
mendorf, Ebenezer Elmer, William Eustis, Abiel Fos-
ter, John Fowler, William B. Giles, Edwin Gray, An-
drew Gregg, William B. Grove, John A. Hanna, Seth
Hastings, Daniel Heister, Joseph Hcister, Wm. Helms,
Joseph Hemphill, Wm. H. Hill, William Hoge, James
Holland, Benjamin Huger, George Jackson, Charles
Johnson, Wm. Jones, Michael Leib, Thomas Lowndes,
John Milledge, Samuel L. Mitchill, Thomas Moore,
Thomas Morris, James Mott, Anthony New, Thomas
Newton, jr., Joseph Pierce, Nathan Reed, John Rut-
ledge, Israel Smith, John Cotton Smith, John Smith,
of New York, John Smith, of Virginia, Samuel Smith,
Henry Southard, Richard Sprigg, Richard Stanford,
John Stanley, Joseph Stanton, jr., John Stewart, John
Taliaferro, jr., Benjamin Tallmadge, Samuel Tenney,
Philip R. Thompson, Abram Trigg, John B. Upham,
Philip Van Cortlandt, John P. Van Ness, Joseph B.
Varnum, Isaac Van Home, Killian K. Van Rensselaer,
Peleg Wadsworth, Lemuel Williams, and Henry
Woods.
Nats — John Davenport, Calvin Goddard, Roger
Griswold, Archibald Henderson, Ebenezer Mattoon,
Lewis R. Morris, Elias Perkins, John Randolph, jr.,
William Shepard, Josiah Smith, John Stratton, and
Benjamin Walker.
MEDITERRANEAN TRADE.
The House again resolved itself into a Com-
mittee of the whole House on the bill for the pro-
tection of the commerce and seamen of the United
States in the Mediterranean and adjoining seas.
Mr. Bayaru offered an amendment, the purport
of which was to ^ive to the President the power of
granting letters ol marque and reprisal, to aflect Al-
giers and Tunis as well as Tripoli. Mr. B. thought
that it would be unsafe to neglect a cautionary
step like this, because there was great danger,
from the similarity of religion and manners, of a
union taking place between Tunis, Algiers, and
Tripoli ; they may be brought into the war with
Tripoli against us. It would be a matter of pru-
dence to be prepared.
Mr. Dana thought it very probable that {unher
information would be received from the Barbary
Powers, when we shall be the better enabled to
judge what will be expedient. He did not like
the appearance of the amendment; it seemed to
invite war.
Mr. Bayard considered there was a great dif-
ference between the Barbary Powers and civil-
ized nations; it was on account of the perfidious-
ness of those Powers, that he wished it left to the
direction of the President to exercise the power
vested in him when he should think proper ; there
was no trusting to them. He wished the Pres-
ident to do this by the authority of law ; this would
prevent those doubts that have been expressed,
by some, of the constitutionality of his measures
the last Spring and Summer ; though for his part
he was disposed to approbate the proceedings of
the Executive on that occasion. As to its havin£^
the appearance of threatening, he did not think
so ; nor did he believe it would have any effect
on those Powers ; he hardly believed that tiie Dey
of Algiers ever read the acts of Congress.
Mr. Dana was opposed to considering the sub-
ject at present; he was for postponing till further
information should be received.
Mr. Giles was against the amendment; he
thought it had the appearance of inviting them to
an attack, of challenging them to combat, of irritat-
ing and provoking them : he believed there would
be ample time to act on this matter hereafter,
when they would have a better knowledge of cir-
cumstances, and of what to expect.
Mr. Bayard said he was by no means disposed
to withdraw his motion. You are at war with
one of these nations; the others are connected
with them by their religion and habits, by their
government some, and by their interest more. I
have been told that there is no connexion between
my amendment and the bill ; but lam confident
there is the same connexion that there is between
Tripoli and the other Powers ; and it is proper
to extend the bill so as to embrace Tunis and
Algiers, as well as Tripoli. The gentleman from
Connecticut (Mr. Dana) says there are no doubts
on his mind but that the President has a Constitu-
tional right, as the Commander-in-chief of the
Army and Navy, to do as he has done ; but it
should be remembered that many have doubts ;
433
HISTORY OF CONGRESS.
434
January, 1802.
Direct Taxes — Import Duties,
H. opR.
and why should the gentleman be opposed to this
amendment, which will preclude all doubt on the
subject ?
The amendment was not carried.
DIRECT TAXES.
The House went into Committee of the Whole,
on the bill for amending the act for laying and
collecting a direct tax.
The first section repeals the thirteenth section of
the act of 1798, which prescribes that lands on
which taxes remain unpaid for one year^ shall be
sold, subject to the right of redemption within two
years after sale.
Mr. Randolph stated that the proyisions pro>
posed to be repealed were unsusceptible of execu-
tion, inasmuch as the expenses of advertising re-
quired, exceeded in many cases, by four or ^"ve
times, the amount of the tax, and which exceeded
the per centage allowed ; and inasmuch as no per-
son would buy the land offered for sale, when he
might be deprived of it by a redemption within
two years.
Documents were read, which substantiated this
statement.
Mr. S. Smith opposed the repeal, as going to de-
prive the owners of lands of the right of redemp-
tion ; which he deemed a valuable provision ;
without which the owners of land, particularly
non-residents, would be deprived of tneir property,
without a knowledge of the tax imposed, or be-
in^ able, however desirous, to pay it.
Mr. RuTLEDGE also opposed the repeal, as im-
posing hardships upon those who have not paid
the tax. which were not imposed upon those who
have paid. He further stated that the non-pay-
ment m the Southern States had arisen, not Irom
indisposition to pay, but from want of collectors
to carry the law into execution \ the compensation
allowed having been so inadequate as in many dis-
tricts to have disabled the Government from ob-
taining officers.
Messrs. Griswold, Milledge, Stanley, and
Morris, delivered their sentiments against the first
section ; when, on motion of Mr. Macon, the Com-
mittee rose, and asked leave to sitagain, which was
granted.
Friday, January 22.
Another member to wit: Robert Williams.
from North Carolina, appeared, produced his cre-
dentials, was qualified^ and took his seat in the
House.
An engrossed bill for the protection of the com-
merce and seamen of the United States in the
Mediterranean and adjoining seas, was read the
third time, and passed.
Mr. Jackson, from the committee appointed,
on the fourteenth instant, presented a bill for the
relief of Isaac Zane ; which was read twice and
committed to a Committee of the whole House
on Monday next.
Mr. John C. Shilie, from the Committee of
Claims made report on the petition of William
Kilty, Chief Justice of the District of Columbia.
The committee were of opinion that when he
accepted of his appointment he knew the duties
required from him and the salary; they were not
therefore in favor of increasing his salary.
The House concurred with the report, and leave
was granted to withdraw the petition.
The House then went into Committee of the
Whole on the unfinished business of yesterday, viz:
a bill respecting the arrearases of the direct tax.
The first section of the bul was struck out, and
Mr. Elmemdorf proposed some amendments.
Mr. Griswold moved that the Committee should
rise, that the bill might be referred back to a select
committee, as it was difficult to settle the detail
of a bill in the House. The Committee rose and
were discharged. The bill was recommitted to
the Committee of Ways and Means.
Mr. Dennis proposed two resolutions, one re-
specting the establishment of a Chancery Court in
the District of Columbia; the other relating to the
public lots, squares, and streets, in the City of
Washington, which had never yet been properly
conveyed to the United States. There were also
difierent plans of the city ; he considered it im-
portant that public sanction should be given to the
more correct one.
Mr. Randolph observed that in the statement
of indemnities under the treaty with France a
large sum was put down for captures which were
not brought into the United States, and which
were condemned. Those made by the public arm-
ed vessels amounted to $122,000. He wished to
know how far the commanders of the public and
other vessels were authorized by their instructions
in making these captures. He proposed a resolu-
tion, nearly as follows : Resolved^ That the Sec-
retaries of State and the Treasury be directed to
lay before this House copies of all the instructions
given to every description of vessels to capture
French vessels.
Mr. EuBTis, from the select committee ap-
pointed on the subject, made a report which pro-
poses to give four months' pay to the representa-
tives of the officers, seamen, and marines, who
were on board the Insurgent, and that the widows^
and children should have half pay for five years.'
The resolutions were twice read, refer rea to a
Committee of the whole House, and made the or-
der of the day for Tuesday.
DUTIES ON IMPORTS.
Mr. Rutledge rose and observed, that he in-
tended to move a resolution calling the attention
of the Committee of Ways and Means to the arti-
cles of brown sugar, bohea tea, and cofiee. There
was not a hut or lo^ house in this extensive coun-
try where these articles were not used. The duty
on sugar and tea was fifty per cent, on the ori-
ginal cost, and coffee forty per cent. It was, he
said, essentially necessary to reduce these hi^h
duties on what may fairly be termed necessaries
of life. The general peace in Europe would be
followed by a reduction in the price of articles
generally, and the earnings of labor in this coun-
try^ would not be so much as heretofore, as the
price of produce would not be so high in tne com-
ing period as in the past.
435
HISTORY OF CONGRESS.
436
H. OF R.
Import Duties.
January, 1802.
From this view of the subject, it became them
to look into the duties, and see whether they would
not reduce those on the necessaries of life. These
articles, from the customs and habits of the poor,
might be deemed as much the necessaries of life
as salt. Mr. R. was sorry the article of salt was
not permitted to go to the Committee, when pro-
posed the other day by his honorable friend from
Delaware. When gentlemen said they were
E leased to see it emanate from the quarter it did,
e expected a unanimous vote in favor of the res-
olution respecting salt ; he did not revert to what
so suddenly took place when gentlemen immedi-
ately changed their minds.
Mr. R. said, what he was about to propose was
a very favorite project with him, not only that it
should go to the Committee, but be carried through
the House.
We are told that such is the prosperity of the
country that we may reduce even the taxes on
luxuries — carriages, stamps, d^., have been par-
ticularly mentioned.
Mr. R. then read his resolution, as follows :
" Resolved, That the Committee of Ways and Means
be instructed to inquire into the expediency of reducing
the duties on brown sugar, coflbe, and bohea tea.''
There was a call for the question, and also that
it should be taken by yeas and navs.
Mr. Claiborne hoped the resolution would be
treated as it deserved. He was surprised when
he saw gentlemen who were formerly so fond of
this mode of taxation, now so strenuous against
it. He could not view the resolution in any other
light than being introduced merely for popularity.
He did not blame gentlemen for a wish to be pop-
ular; he liked the principle, but would vote against
the resolution, and siill ne would maintain his
popularity. Unless gentlemen would show him
they could repeal the internal taxes, and part with
some of the remaining revenues, and yet leave
sufficient for the exigencies of Government, he
would not agree to this resolution. Do gentle-
men, who are for taking the funds from the pres-
ent Administration, like it less than they did the
last? He thought they did not. Mr. C. hoped
the mover of the resolution would let it lie for
consideration.
The question was again called for.
Mr. Dana hoped the proposition would be treat-
ed as it ought, and that it would not be scouted
from the House without consideration, because it
interfered with a favorite measure of some gen-
tlemen.
Mr. D. said, upon general principles, he was in
favor of the resolution going to the committee,
that a fair comparison between the external and
internal duties might be made. The duties on
articles then before the House, were specific and
not ad valorem duties, and they were laid with
a view to war prices, and not what they would
be in time of peace. Thirteen per cent, was about
the average rate of ad valorem duties, and twen-
ty per cent, the highest, and those were the arti-
cles consumed by the wealthy.
The report ot the Secretary of the Treasury
shows clearly that the price of the articles in the
resolution are nearly all doubled in war, and the
duty is not to fall with the fall of prices in time
of peace, yet the ad valorem duties come down
witn the prices of the articles.
Is there, said Mr. D., a single principle of finance
in favor of the inequality ? The same proportion
of duties to prices should be observed in peace as
in war, or it would be a great temptation to smug-
gle. Wicked people would engage in it, if strong
temptation were thrown in their way. For this
reason the duties should be reduced.
There was another point of view in which this
subjectshould be considered — that the duties were
paid chiefiy by the commercial part ol tne com-
munity.
Mr. D. said he knew they were doomed to bear
whatever certain gentlemen chose to lay upon
them ; but he would not be laughed out of the
object which his duty pointed out to him. The
articles in the resolution were more used in the
Northern than Southern States, and were paid
chiefly by the poor; therefore, the proposed in-
quiry was perfectly proper, unless gentlemen were
determined the internal duties should first be re-
pealed, before any consideration should take
place, as to what duties were most proper to be
reduced.
Mr. S. Smith observed, that he did not rise to
offer any arguments against the resolution, as be
did not consider it intended for that House, but
for the public. He was opposed to the resolution
because the subject was already generally before
the committee.
Mr. RuTLEOGE said, he would state, for the in-
formation of the gentleman from Maryland, that
he might not hereafter misunderstand him, that
he always had one meaning in what he said to
that House. The good of^the people was the ob-
ject he had in view.
Mr. Griswolo said, according to his idea, this
subject was not before the committee ; they had
the subject of duties generally before them, and
would make a genersH report ] but if these three
articles are referred, they must report on them,
and the House must decide specifically on these
three. Were gentlemen afraid to let the House
decide on these three ?
He was at a loss to see any reasons for such an
objection. The tax on sugar and coffee was fifty
per cent, on the first cost, and on tea more. It
becomes a matter of serious consideration, said
Mr. O., whether you can retain the present taxes
on them in time of peace, and prevent smuggling.
It is a clear principle, that revenue is diminished
when taxes are carried too far. When we con-
nect with this truth, the fact that these articles
are of prime necessity, and used principally by
the poor, and it is determined the rich shall not
pay for their carriages, dbc, it cannot be denied
that this resolution ou^ht to go to the committee
for their consideration 1
Mr. Dana thought it prudent for the gentle-
man from Maryland to decline answering the ar-
guments urged in favor of the resolution. The
duty on the articles included in it amounted to
$220,000.
437
HISTORY OF CONGRESS.
438
January, 1802.
Import Duties.
H. opR.
Mr. Batard did not know but it would be giv-
iug the House unnecessary trouble to offer his sen*
timents on the resolution. As no arguments had
been used against it, it was not to be presumed that
a majority of the House could be opposed to it.
The object of the resolution was not to dimin-
ish but to make inquiry on the subject, and know
whether the duty on certain articles, the consum-
ers of which were but little able to pay it, might
not be reduced. Will gentlemen scout it out of the
House, as has been said, without deigning to an-
swer the arguments in favor of the measure ? It
has been said, Mr. B. observed, that the subject is
referred generally. The general reference is not
for the committee to inquire into the propriety
of reducing the duties, but to know whether the
laws are sufficiently energetic to insure the col-
lection of the duties, and to bring all the laws, on
the subject of the revenue, into such a compass
as to be more plain and simple. The general re-
ference has nothing to do with the motion before
the House.
The fortunate situation in which we find our-
selves^ enables gentlemen on all sides to agree in
reducing the public expenses. By the bill reduc-
ing the Army $450,000 will be saved, much also
in the Naval department, and a vast deal in the
Civil List, perhaps $800,000. Is it not expedient
to make inquiry on the subject ? Must we con-
fine ourselves to philosophic revenues alone, with-
out any reference to what is useful ? Because it
has been mentioned by the President in his Mes-
sage, that the taxes on luxuries may be reduced,
shall we inquire as to the necessaries of life and
their effect on finance, not as to the burdens they
impose on the people. Those who oppose the re-
ference of the resolution offered by the gentleman
from South Carolina, do not treat with proper re-
spect those who complain of grievances.
Mr. Smilie said, gentlemen complain that their
arguments are not answered. He thought there
was not a new idea started in the course of the
debate ; perhaps there could not be anything said
either for or against the resolution, different from
what was said when the resolution respecting salt
was before the House. It would, therefore, be a
mere waste of time to answer gentlemen.
Mr. Claiborne never thought it a waste of time
to debate on any subiect that came before the
House. He continued : I said it had a tendency
to popularity; that was an inadvertent expression.
I did not mean to propose that the motion should
be scouted from the House ; I would never treat
gentlemen with such disrespect. I asked the
mover to let it lie on the table until we repealed
the excise. When we have done that I will agree
to this resolution, if we can spare any more from
our revenue.
JAt, Rutledoe replied to the gentleman from
Pennsylvania, (Mr. Smilie.) as to the charge that
there were no new arguments that day. Mr. R.
said, either the gentleman from Pennsylvania has
not neard the arguments that have been used this
day, or I did not hear those which were used when
the resolutions relating to salt were before the
House. He alleged, nothing new has been said.
I think that nothing has been said analogous to
I what was expressed about the salt tax. The arti-
the interests of the country ? Will not gentle- cles in this resolution are, of all the foreign pro-
tlemen give up their favorite project as to inter-
nal taxes, even for the welfare of the country ?
It is now before the Committee of Ways and
Means to consider whether the internal revenues
may not be altogether abolished.
The resolution, Mr. B. said, which he had the
honor to propose a few days ago, was to have the
salt tax compared with the tax on carriages, and
thus determine which would be the most beneficial
to the country, to be reduced or abolished. Gen-
tlemen gave the subject the go-by, by the previ-
ous question. Now they are prepared to vote on
this without saying a word. Mr. B. trusted the
motives of his friends were as pure and patriotic
as theirs. He sajd, we wish the subject to go to
the committee that the necessary burdens might
be placed on those who were best able to bear
them.
Mr. GonoARD alluded to the observation which
was made, as to the motive in bringing forward
this resolution, that it was not for that House but
the public, and said we must be permitted to at-
tend to the interest of our constituents. He though t
there was more cause for alarm when gentlemen
said, and it would so forth to the world, that the
subject of the resolution was already before the
committee. It amounts to saying; you shall not
direct the committee to any particular articles,
because they have the general reference before
them. The committee, under the general refer-
ductions, most consumed ; they are most general-
ly consumed ; indeed, almost exclusively, by the
poor ; whereas, salt is an article of general con-
sumption, and but a small proportion by the poor.
Are not these facts ? Look at the report or the
Secretary of the Treasury. The duty on brown
sugar is 2^ cents per pound, or $2 50 p«r cwt., and
the original cost is not more than six dollars or 6^
per cwt. The amount of duty on brown sugar is
$903,000 annua 11 V. This shows how much is
consumed, and that, too, by the poor ; and yet
gentlemen will not let the subject be referred to
the committee.
Mr. R. adverted to the internal taxes which
had been recommended to their consideration by
the President in his message. He had a proper
respect, he said, for the Chief Magistrate ; ne oe-
lieved he had never treated him with disrespect,
and trusted he never should.
Mr. R. continued. — Yet we are not to be stop-
ped in this business, by being told the President
has recommended a reduction of this tax, and he
has not called our attention to that. It is a duty
merabern owe their constituents, when the Presi-
dent has not called their attention to what bears
heavy upon them, to bring it forward in this
House. What ! must the tax on carriages, stills,
and the stamp tax, be abolished ; and when we
want equality of burdens only, and propose a ques-
tion with that view, shall gentlemen who have a
ence, are to inquire respecting the duties, as to | favorite project in view, say we will not hear
439
HISTORY OF CONGRESS.
440
H. OP R.
Import Duties.
January, 1802.
what you have to sav ; we will not answer 1 Will
the country be satisfied with such procedure?
Mr. R. had no obiection to the internal taxes
being discontinued, out he thought they should
take a comprehensive view of the subject, and see
whether that would be the most favorable to the
country. It is a favorite project, he said, with
some gentlemen, to abolish the stamp tax; but,
Mr. R. said, his constituents did not feel it ; there
was not, perhaps, one of tbem who paid three dol-
lars a year; yet he had no objection to discon-
tinuing it. Nor did they feel the tax on stills.
He thought the House should not attend exclu-
sively to taxes that bear hard only upon particular
parts of the country. To refuse a reference was
not treating gentlemen with that respect which
was reciprocsuly due from members of that House.
Mr. SouTHARn wished to give his reasons for
voting against the resolution. He was of the
same opinion as to this, that he was when the res-
olution respecting salt was offered to the House,
he believed it completely before the committee,
and it was their duty, under the general reference,
to take into view each article. It was, therefore,
unnecessary for members to offer resolutions on
each article of importation. It was erroneous to
say coffee was exclusively used by the poor; they
scarcely used any; and brown sugar was used
with coffee, and but little of it consumed by the
poor; almost the whole of these articles were
used by the rich. The taxes could never fall
equally upon all parts of the country. In the car-
riage tax, New Jersey pays more than some large
States. They should go upon the general good
in regard to taxation.
Mr. S. thought it unnecessary and improper in
every point of view, that the Committee should
be directed to each particular article. One gen-
tleman might rise in his place, and propose a
resolution on the carriage tax, another on stills, a
third on stamps, and so on, to the great delay of
business. It was premature to offer any resolu-
tions, until the Committee of Ways and Means
made their report on the general reference.
Mr. RuTLEDGE said, when he submitted the
resolution, he did not expect any serious opposi-
tion would be made to it. but. finding it was op-
posed, he would vary his motion, so as to read,
** Resolved, That the duties on brown sugar and bohea
tea, and coffee, ought to be reduced.''
Mr. Randolph did not think the House pre-
pared to decide on the resolution.
If the revenue should be found sufficient to ex-
tinguish the national debt within the time men-
tioned in the report of the Secretary of the Treas-
ury, pay the expenses of Government, repeal the
internal taxes, and yet leave a surplus, he would
be happy to join gentlemen in making reduction
on their imposts.
Mr. R. hoped to live to see the time, when the
General Government would only net the five per
cent, ad valorem duty, agreeably to the resolution
of the Old Congress, but he would not agree to
any reduction until he could see his way clear
into the necessary expenses of Government Mr.
R. said, we are told we should not repeal the in-
ternal taxes, because the rich pay tbem. The
taxes on carriages and loaf sugar are given as in-
stances. And we are ur^ed to reduce the taxes
on salt, brown sugar, bohea tea, and coffee, be-
cause the poor pay it.
Mr. R. had no difficulty in saying, he was in
favor of repealing the internal taxes, to get clear
of the perplexities of the excise system, and the
expenses incurred in collecting the mteroal duties.
These taxes were not paid by the rich. Domestic
distilled spirits were used by the poor. A princi-
pal objection with him to the internal taxes, was
the host of officers brought under Executive pat-
ronage, who take their tone from those on whom
they depend, and are ready to disseminate through
the country the principles held by the Executive.
Gentlemen appeared desirous of retaining that
rampart of protection the Executive has been
raising around him. His object in repealing the
excise, was as much to get clear of tnis host of
officers as to be relieved from the taxes.
Mr. R. said, he would endeavor to ^et clear of
this question in the way appointed for Legislative
bodies to get clear of questions calculated to em-
barrass them, and would move the previous ques-
tion.
Mr. Dennis moved a postponement of the reso-
lution, which he thought would supersede the
previous question.
Some observations were made as to points of
order.
Mr. Giles said, it was necessary certain rules
should be had for thi government of deliberative
bodies; the previous question was adopted to get
clear of subjects prematurely brought before them ;
this was its original intention. That was one of
the questions this rule was calculated for. The
only proper question, was the previous one.
Gentlemen have now placed themselves in the
situation they blamed others for taking. They
have reversed the situation of things as to the in-
ternal revenue. Instead of contrasting the taxes,
it is proposed to reduce the impost on certain ar-
ticles.
There was no cause for gentlemen to say they
are treated with disrespect. There was an evi-
dent precipitation in the business, and when that
was the case, it was not the proper time for gen-
tlemen to give their sentiments on a subject.
Mr. RuTLEnoE then restored his resolution to
its original form.
The previous question was called, and ayes and
noes agreed to be taken.
Mr. GonoARO said, there were, daily, references
made of petitions on various subjects, and there-
fore this resolution ought to be referred.
The constituents of some gentlemen think prop-
er to petition Congress on particular subjects.
The constituents of others depend upon their
Representatives to bring their grievances before
the Legislature, and in this way, shall a reference
be refused ?
Mr. Giles wished the question had been taken
directly, and was prepared to give it his negative
He should be now in favor of the previous ques-
441
HISTORY OF CONGRESS.
442
January, 1802.
Import Duties.
H. ofR.
tioQ. He thought it improper to refer particular
articles, when the committee had them generally
before them.
Mr. G. said, ninety-nine hundredths of brown
su|^r were consumed by the rich, or by those in
middling circumstances. This was the case with
the taxes generally. There were not sufficient
grounds for saying the poor were affected by these
taxes.
Mr. Elmer spoke against the resolution. He
thought the poor consumed very little of the arti-
cles mentioned ; many of them were, for months
together, without having any sugar in their houses.
He was in favor of the previous question.
Mr. Dennis said, he was prepared to vote against
the previous question, and for the main question.
He thought it very unusual to oppose the refer-
ence of such a resolution.
Mr. Dana considered it proper, when an abstract
proposition was presentea to the House, that it
should be decided there, or in Committee of the
Whole ; but a resolution like the one before the
House, even upon the principles of the gentlemen
who oppose it, should be referred, as proposed, to
the Committee of Ways and Means.
Mr. Smith agreed with his colleague in opin-
ion, that it would be best to decide on the propo-
sition directly. E^rly in the session, he proposed
a resolution, that the external duties should be
brought before the committee, and he mentioned,
at that time, one of the articles (salt) which has
occasioned so much debate since. It was his opin
ion, therefore, that the subject was already before
the committee. He then read from the Journal
the resolution he alluded to.
** Resohedt That the Committee of Commerce and
Manufactures be directed to report whether any and
what alterations are necessary in the laws impodng
duties on the tonnage of ships or veaaeht, and on goods,
wares, and merchandise, imported into the United
States.
*' Resolved, That said resolution be referred to the
Committee of Ways and Means."
Mr. Smith said, it would unnecessarily swell
the iournals to refer specific resolutions on each
article. When the committee make a general re-
port, it will be in the power of each gentleman to
move a reduction on any article he may think
proper.
Mr. Griswolu considered the arguments used
by the gentleman from Virginia, (Mr. Giles.)
respecting the previous question, went to show
that the main question ought then to be put; he
had also said he was prepared to give it his nega-
tive. Why, then, vote for the previous question ?
Mr. Randolph wished to withdraw the pre-
vious question.
The Speaker said, it required five members to
agree iu moving the previous question, and there-
fore it could not be withdrawn by one member,
f Mr. Batard thought it clear that the main
question should be then put. He had heard two
arguments only used against it ; one, that the reso-
lution was already referred ; but this was denied.
He asked, would the committee fail in their duty
if they did not report on this subject ? Could
you impeach them of disobedience? Let me ap-
peal to the candor of gentlemen. Many wish it
referred because they think it is not before the
committee. Where, then, can be the harm of
referring it? They agree that the committee
should make the inquiry, but say it is already re-
ferred. We think not What, then, can be the
injury upon their own grounds, if it should be
referred ? It is a proposition allowed on all hands
to be proper for the committee to take under con-
sideration.
Gkntlemen say, delay is our object in bringing
it forward. They are the authors of the delay.
If they had taken a more propter mode, and, give
me leave to say, a wiser mode, it would have been
avoided. Further delay may now be avoided by
them. The debate has been provoked. To offer
a resolution on every article would not delay an
hour in the session. Nor could we produce delay
if thev did not oppose us. The gentleman from
Maryland (Mr. Smith) talks about swelling the
journals by that mode. Is he afraid of increasing
the labors of the Clerk, or making work for your
printers? What motive can there be for us to
increase expenses in this way ?
The resolution is not to reduce the taxes on
those Particles, but to make inquiry on the subject.
Three hundred and fifty thousand dollars may be
dispensed with, besides the internal taxes. We
wish the whole subject before the committee, for
them to calculate the two species of taxation, in-
ternal and external, that they may decide which
taxes would be most beneficial to the community
to be reduced. Will gentlemen say that these in-
ternal taxes shall be reduced, even in opposition
to public utility ?
The gentleman from Virginia (Mr. Ranuolph)
savs, they create a host (or Presidential patronage.
We have no desire to send Executive influence
over the country. These motives would influence
me against these taxes. It is a great national ob-
ject we have in view. If there should be any
system of espionage in the tax on stills, this will
not applv to the tax on loaf sugar, on carriages,
dbc. It has been said that it takes twenty per
cent, on the aggregate amount of this tax to pav
for collecting. But this is not the case with each
particular item. On stamps it does not ainount to
six per cent., and if a numoer of these duties may
be retained, and the expense of collection not ex-
ceed what is paid for collecting the impost, their
great argument is invalidated. If the tax on ne-
cessaries is more burdensome than on luxuries,
which th^ excised articles are, will they pay the
tax on imports if it should not be reduced?
Mr. NicBOL0ON could not agree with the gentle-
man from Delaware as to the cause of delay.
When the resolutioa was proposed, the question
was called for, diflerent gentlemen in favor of it
continued to speak, although not oi>posed ; it was
not therefore his friends who occasioned the de-
lay. He was opposed to referring the resolution,
because the subject was alreadr before the Com-
mittee. He hoped they would have the question.
Mr. Griswolu observed that every member who
spoke on the subject said he was prepared to vote
443
HISTORY OF CONGRESS.
444
H. opR.
Import Duties.
January, 1805i
on the main question — that the Committee of
Ways and Means should not be instructed to in-
quire into the propriety of reducing the tax on
the articles mentioned in the resolution. The
subject was important, and the attention of the
committee should be called particularly to it. Un-
der the general reference, the Committee of Ways
and Means can only say it is expedient that the
Committee of Commerce and Manufactures be
instructed to prepare a bill on imposts generally.
A gentleman from New Jersey (Mr. Southard.)
had said the carriage tax bore hard upon that
State ; that subject was referred to the commit-
tee. Another gentleman from the same State
(Mr. Elmer,) said, sugar was not much used by
the poor in his part of the country. Mr. Q. said
that it was very different where he was acquainted,
for there they consumed great quantities of it.
Mr. Dana thought it important that this sub-
i'ect should be fairly met. As to swelling the
ournal and increasing the expenses in that way,
he was surprised to hear that objection made by
the gentleman from Maryland, (Mr. Smith,) who
had proposed that Cong^ress should adjourn for
eight or ten days, which would have occasioned
an expense to the nation of as manv thousand
dollars, and now he objects to the paltry, incon-
siderable expense of swelling the journals. He
was not for taking the bread from the mouth of
the laborer. In his part of the country, the poor
did consume the articles mentioned in the resolu-
tion. By poor, he did not mean beggars, but peo-
ple who labored for their living; and he gloried
that, in his part of the country, they could, and
did use these articles.
Mr. D. said, if the public good required it, he
would tax his constituents whether they agreed
to it or not ; but he would never agree to tax them
severely, to gratify the whim of any part of the
country.
Mr. Davis said, as it would no doubt be grati-
fying to the gentleman who had just sat down, he
would answer him; he might otherwise think his
arguments unanswerable. He believed the gen-
tleman's constituents would have but little cause
to thank him for his present attempts to serve
them. The gentleman has been long in majori-
ties, but never before made any attempt to serve
them in this way. But when he is placed in the
back-ground, when he has no longer any power
to serve them, then forsooth he is very readv to
do it. The gentlemen who are now so mucn in
favor of repealing "these taxes, when they were in
a majority laid these taxes ; and now, when in a
minority, they call upon us to take them off. They
say the state of the country is altered. True it is the
state of the country is altered ; we then pretended
to fear a war from a nation surrounded by ene-
mies, and so hedged in by enemies that they could
not get at us. Then a quarrel was feared, and
now we have a war actually on hand. The offi-
cers employed in collecting the internal taxes were
too numerous to keep up that mode of taxation.
It would be dangerous to take off the impost — as
it was once said, What would be the effects of the
general peace ?
Mr. D. hoped the experience of that day would
teach the majority to let the minority speak as
they pleased on such questions, without making
them any answer.
1|Mr. T. Morris said, the gentleman from Ken-
tucky has given a new turn to the debate. He
says the gentleman from Connecticut, while in a
majority, taxed his constituents, and now calls on
the present majority to take off these taxes. Mr.
M. asked if that assertion was correct. If it was
considered minutely, he thought it would not ap-
pear to be so. From whence did the call for re-
ducing the taxes come ? From the other side of
the House. It came originally from the Execu-
tive. Was it fair then to say, the minority were
attempting to take from the Government the
means of supporting itself? Surely it was not
so. It is a sentiment of the Executive and the
Legislature to reduce the taxes. Should not an
inquiry take place as to what taxes are the most
proper to be reduced ? Mr. M. thought it was due
to his constituents to make the inquiry, in order
to ascertain which should be repealed, and this
liberty of thinking has called forth what we have
just heard. He thought they were sent there to
confer together about the public good. It was but
fair to consider arguments, give them due weight,
and meet them fairly. A proposition, when of-
fered to that House, ought to be discussed.
Mr. Dana said, that he had voted for the taxes
formerly, he was not ashamed to deny ; when it
was necessary these expenses should beaugmented,
he chose that his constituents should pay their
part. Now, when the taxes are to be reduced,
were they to be denied thb privilege, not of lessen-
ing them, but of making inquiry on the subject ?
He did not ask it as a favor, but he claimed it as
a right.
The gentleman from Kentucky had mistaken
what he said in another particular ; when he re-
minded the Committee that the taxes on the arti-
cles mentioned in the resolution were laid with a
view to war prices, he did not mean we had war
in this country, but there was a general war over
the commercial world, and the man must be an
ignoramus not to know that was his allusion.
The previous question was then put in these
words — •' Shall the main question be now put ?"
There were yeas 45, nays 49, as follow :
Yeab — Willis Alston, Theodorus Bailey, James A.
Bayard, John Campbell, Matthew Clay, Manasseh
Cutler, Samuel W. Dana, John Davenport, Thomas
T. Davis, John Dennis, William Dickson, Abiel Fos-
ter, John Fowler, Calvin Goddard, Roger Griswold,
John A. Hanna, Seth Hasting^, Joseph Hemphill, Ar-
chibald Henderson, William H. Hill, Benjamin Huger,
Thomas Lowndes, Ebenezer Mattoon, Lewis R. Mor-
ris, Thomas Morris, Joseph Pierce, Elias Perkin.*,
Thomas Plater, Nathan Read, John Rutledge, William
Shepard, John Cotton Smith, John Stanley, John Strat-
ton, Benjamin Tallmadge, Samuel Tenney, Thomas ♦
Tillinghast, George B. Upham, Joseph B. Vamum,
Killian K. Van Rensselaer, Peleg Wadsworth, Ben-
jamin Walker, Lemuel Williams, Robert Williams,
and Henry Woods.
Nats— nJohn Archer, John Bacon, Phanuel Bishop,
445
HISTORY OF CONGRESS.
446
January. 1802.
ImpoYt Duties.
H. OF R.
Richard Brent, Robert Brown, William Butler, Thos.
Claiborne, John Condit, Richard Cutts, Lucas Elmen-
dorf, Ebenezer Elmer, William Eustia, WiUiam B.
Giles, Edwin Gray, Andrew Gregg, Daniel Heister,
Joseph Heister, William Helms, William Hoge, James
Holland, David Holmes, George Jackson, Charles John-
son, Michael Leib, John Milledge, Samuel L. MitchiU,
Thomas Moore, James Mott, Anthony New, Thomas
Newton, jun., Joseph H. Nicholson, John Randolph,
jun., John Smilie, Israel Smith, John Smith, of New
York, John Smith, of Virginia, Josiah Smith, Samuel
Smith, Henry Southard, Richard Sprigg, Richard Stan-
ford, Joseph Stanton, jun., John Stewart, John Talia-
ferro, jun., DaTid Thomas, Philip R. Thompson, Abram
Trigg, John Trigg, and Philip Van Cortiandt
Monday, January 25.
Mr. S. Smith, from the Committee of Com-
merce and Manufactures, presented a bill to allow
a drawback of duties on goods exported to New
Orleans, and therein to amend the act, entitled "An
act to regulate the collection of duties on imports
and tonnage;" which was read twice and com-
mitted to a Committee of the whole House to-
morrow.
The Speaker laid before the House a letter
from the Secretary of the Navy, enclosing copies
of the instructions heretofore given by the Depart-
ment of the Navy, to the commanders of vessels
in the public service, authorizing the capture of
vessels belonging to the French Kepublic, in pur-
suance of a resolution of this House of the twenty-
second instant; which were read and ordered to
lie on the table.
A message from the Senate informed the House
that the Senate have passed a bill, entitled "An
act authorizing the discharge of Lawrence Erb
from his confinement;" to which they desire the
concurrence of this House.
The said bill was read twice and ordered to be
committed to a Committee of the whole House
to-morrow.
The Speaker laid before the House a letter
from the Secretary of State, enclosing a copy of
the instructions heretofore issued to the comman-
ders of private armed vessels of the United States,
from the Department of State, under the direc-
tion of the President, in virtue of an act of Con-
gress, entitled "An act further to protect the com-
merce of the United States," transmitted in pur-
suance of a resolution of this House, of the twenty-
second instant; which were read, and ordered to
lie on the table.
The Speaker laid before the House a letter
from the Secretary of the Treasury, accompany-
ing his report on the petition of Joseph Ward, for
himself and others, holders of certain bills of credit,
referred to him by order of the House, on the
eighth instant; which were read, and ordered to
be committed to a Committee of the whole House
to-morrow.
The House proceeded to consider the report of
the Committee of Claims, of the twelfth instant,
to whom was referred, on the fourteenth ultimo,
the petition of Caleb Eddy, "with instruction to
inquire into the expediency of extending to the
refugees from the British provinces of Canada and
Nova Scotia, a further time for exhibiing their
claims for lands under the "Act for the relief of
the refugees from the British provinces of Canada
and Nova Scotia," which lay on the table; Where-
upon,
Ordered^ That the report be committed to a
Committee of the whole House on Thursday next.
Mr. T. Morris called up the resolution he laid
on the table on Friday last, viz :
^^Ruohtdy That the Secretary of the Treasury be
directed to lay before this House the amount of duties
paid on stamps in each State, specifying what propor-
tion was paid by the commercial cities.''
The question being put, there were for it 34,
against it 54 — so it was not carried.
IMPORT DUTIES.
Mr. Nicholson called up the resolution he lai^
on the table on Friday, for instructing the Com-
mittee of Ways and Means to report generally on
the suhject or impost duties.
Mr. Lowndes wished to amend it so as to di-
rect the atteotion of that committee particularly
to the article of salt, brown sugar, coffee, and Bo-
hea tea.
This the Speaker considered out of order, as
resolutions on those subjects were then before the
House.
Mr. Rutledge and Mr. Bayard wished to
withdraw the resolutions they had offered on the
articles of salt, brown sugar, dec.
The Speaker considered the resolutions in pos-
session of the House, as they had been debated,
and the previous question taken on them, and no
motion could be made while another motion was
pending.
Mr. Bayard asked for information whether it
was in order for him to state that he withdrew in
his resolution ?
Some conversation took place as to points of
order.
The question on the resolution was called for.
Mr. Dana said there was no instruction given
to the committee by the resolution of December
13, to make a report on the subject of imposts and
tonnage. He was pleased to see this resolution
moved by the gentleman from Maryland, as it
showed his belief to be that the subject was not
referred to the committee.
Mr. Dana expressed his wish that two things
should be referred to the Committee of Ways and
Means : First, a general view of the duties of im-
posts and excise that they misht be contrasted ; and,
secondly, that certain articles should be specifi-
cally referred to them.
Mr. Nicholson said the gentleman from Con-
necticut was very much mistaken as to the object
of his resolution. It was not that he did not
think the subject before the committee, but as so
much had been said about the former general refer-
ence^ he wished to prevent the gentleman from Con-
necticut from quibbling respecting the reference.
[Here Mr. N. was called to order by Mr. Gris-
woLD. The Speaker declared it as his opinion
that the gentleman was in order. Mr. Bayard
447
HISTORY OF CONGRESS.
448
*H.ofR.
Internal Revenues,
January, 1S02.
appealed to the House, and called the yeas and
nays, which were agreed to be taken.]
Some gentlemen wished the words made use of
by Mr. Nicholson to be stated, that the House
might determine whether it was in order to make
use of such expressions, but it was put in the
usual mode. Mr. Dana and Mr. Nicholson
were excused from voting.
The question, " Was the gentleman in order?"
was then put, and carried in the affirmative — yeas
56, nays 30.
Mr. Nicholson's resolution was to the follow-
ing effect :
*^ Resolvedf That the Committee of Ways and Means
be instructed to inquire into the laws laying impost and
tonnage duties, and report to this House.'*
It was put and carried.
INTERNAL REVENUES.
Mr. Bayard called up the following resolution,
which he had some days previously laid upon the
table, viz :
" Resohedt That the Secretary of the Treasury be
required to lay before this House an account, in jletail,
of the expenses incurred in the collection of the inter-
nal revenues of the United States ; distinguishing,
where the same may be practicable, the expenses at-
tending the collection in each branch of the said re-
venue, and, also, an estimate of reduction of said ex-
penses which may conveniently be made.''
The resolution having^ been read, Mr. B. said :
As it is extremely possible, Mr. Speaker, that it is
designed that this resolution shall share the same
fate with that which the resolution of the gentle-
man from New York experienced this morning, I
shall be allowed at least by publicly stating, to
justify to the world, the motive which induced
me to bring it forward. [Mr. B. alluded to a reso-
lution offered by Mr. T. Morris, the object of
which was, to direct the Secretary of the Treasury
to state to the Hpuse the amount of stamp duties
collected in each State, distinguishing wnat part
was paid by the commercial cities. When the
resolution was taken up there was a call for the
question. Nothing was said against the propriety
of it. It being merely a call for information, and
considered so much a matter of course to agree to
such resolutions when no opposition was made to
them, it was not supposed necessarv to say any
thin^ on the propriety and reasonableness of the
resolution. Yet, to the astonishment of its friends,
when the question was put, there were for it 34,
against it 54.]
Gentlemen are infinitely deceived, said Mr. B.,
if they think our object is, by any particular mode
of proceeding, to gain an unfair advantage of pub-
lic opinion. If such a suspicion be entertained,
our conduct has been viewed with a jaundiced
eye. It is a motive which never has, and I hope
never will direct our measures. If popularity is
to be gained only by^ a prostitution oi principle to
ignorant and unthinking prejudice, we are con-
tent to forego it. 1 am far from being indifferent
to public opinion ; the approbation of our fellow-
citizens is the only reward we can expect for our
services ; but it is a reward no honest man wih
seek, if it is to be acquired only by artifice and
deception.
I have avowed and avowed sincerely, that I am
disposed to go hand and hand with gentlemen in
the reduction of public burdens. When it was
necessary I assisted in imposing them — now that
circumstances permit I more cheerfully co-operare
in taking them off. My true object is to make
the most of our situation ; not to be deluded by
empty theories, or speculative systems, but, by aa
enlarged view of the various interests of the
country, to discover by the reduction of what
taxes tne society would be the most substantially
benefited.
The reduction of the Military Establishment
creates considerable savings ; other retrenchments
are contemplated in the Navy and civil adminis-
tration. These savings enable us to dispense with
certain taxes ; but is it not wise to examine dili-
gently the operation of the several taxes which
exist, and, after being informed by the various
views which belong to the subject, to exonerate
the community from those which, with the least
benefit, are the most burdensome ?
One great objection to the internal taxes is the
expense of collection. I wish to know the par-
ticulars of this expense, in order to see whether
it may not be curtailed. I wish also to be in-
formed of the expenses attending each branch of
the revenue, for the purpose of judging whether
it may not be expedient to retain some branches,
while it may be wise to part with others. These
are my objects ; do they not entitle us to the in-
formation asked?
We know in one instance, that the expense in
collecting the stamp duty is less than five per cent.
This appears by the report ot the Secretary of the
Treasury ; but we are not informed of the particu-
lar expenses belonging to the other branches of
the revenue.
Do gentlemen mean to lock up the doors of the
Executive offices, and deny the information those
offices were designed to supply to this House?
Are they afraid of the liffht which may betlirown
on this subject. Are thev afraid that it will be
discovered that it is not the general good which
they are pursuing, but local and private advan-
tages ? Can information injure us ? If the project
contemplated is a correct one, will it not be pro-
moted rather than obstructed by the information
called for ? For my own part, said Mr. B., I want
this information, in order to discover the course
which it is my duty to pursue. I do not feel myself
committed as to any particular plan.
If it should really be found, that it is better to
tax articles of necessary consumption than those
of mere luxury, that a tax on carriages is more
oppressive than a tax on salt or brown sugar, I
should certainly yield to the conviction, however
unexpectedly it might assail me.
Sir, said Mr. B., I must rely that the resolution
will be agreed to ; there is not a precedent in our
annals of opposition to such a resolution ; if. how-
ever, one is now to be introduced, I think it proper
that the names of those gentlemen should hereaf-
ter appear by whom it was resisted, and by whom
449
HISTORY OF CONGRESS.
460
January, 1802.
Internal Revenues.
H.ofR.
it was established. He therefore hoped the ques-
tion would be takeD by yeas and nays.
The Clerk, at the request of Mr. Randolph, read
an extract from the report of the Secretary of the
Treasury, as follows:
*' It will appear by the same statement, [M J that
while the expenses of collection on merchandise and
tonnage, which are defrayed out of the reyenue, do not
exceed four per cent., those on permanent internal
duties amount to almost twenty per cent. This, how-
ever, is an inconvenience which, on account of the
great number of the individuals on whom the duties
are raised, and of their dispersed situation throughout
the whole extent of the United States, must, more or
less, attach to the system of internal taxation so long
as the wants of Government shall not require any con-
siderable extension, and the total amount of revenue
shall remain inconsiderable."
Mr. T. Morris. — If the honorable gentleman
from Virginia (Mr. Randolph) thinks that the
extract of the report of the Secretary of the
Treasory, the reading of which he has called for,
furnishes the information demanded by my honor-
able friend from Delaware, he is mistaken. The
Secretary's report gives you a general estimate of
the expense ot collecting the ap^gregate of the in-
ternal taxes, but does not specify the charge fall-
ing on each separate tax. From the statement
exhibited by the Secretary, it appenrs that it costs
twenty per cent, to collect the wnole of the inter-
nal taxes ; but if the detailed statement asked for
by the gentleman from Delaware is furnished, it
will appear that the collection of some of those
taxes does not cost more than five or six per cent.
To show how unfair it is lo connect together the
expense attending the collection of all the inter-
nal taxes, I need only refer gentlemen to an au-
thority which I believe they will not dispute. If
my memory, sir, is not very incorrect, it will ap-
pear by a publication of the present Secretary of
the Treasury, written in the year 1796, that the
tax on country distilleries cost in its collection
near thirty per cent.; that on city distilleries
about nineteen. These, sir, and other reasons,
may evince the propriety of repealing the tax on
country distilleries; but because this tax is ex-
pensive in its collection, because it may be liable
to objections, does it follow that other taxes, such
as the tax on carriages, on refined sugars, dbc,
which fall on the rich, and which are not expen-
sive in the collection, does it follow, I say, that
because it may be proper to repeal the first, that
these are to fall too ? It is, sir, in order to be en-
abled to make proper discrimination, to be enabled
to know which of these taxes ought to be repealed,
and which retained, that the genUeman from Dela-
ware has moved his resolution. And here, sir, let
me be permitted to express a hope, that the reso-
lution now before you may not meet with the
silent negative which was the fate of one intended
also to procure information, and which I had the
honor of laying on your table. I did and do still
believe, sir, that the majority of this House could
not have been actuated by proper motives in re-
fusing that information. [Here Mr. Randolph
called Mr. Morris to order, saying that he had
7th Con.— 15
no right to impeach the motives of members.
Mr. M. observed that for his part he was at a loss
to know what was considered disorderly in that
House, but that he would submit to the correction
of the Chair. The Speaker determined him io
I be in order, and Mr. M. proceeded.] With regard,
sir, to the course of proceeding which gentlemen
have latel]^ adopted, persevering in an inflexible
I silence, rejecting every proposition made by a
' member in the mmority, without deigning to show
its fallacy, refusing public documents for our in-
formation and that or our fellow-citizens, without
showing, or even pretending* to show, that they
are unnecessary, I can only say that it militates
against all my ideas of propriety. I have always
hitherto supposed that every Kepresentative on
this floor had a right to be heard ; that he had a
right to call on the majority for their reasons both
wnen they supported and opposed public meas-
ures. Gentlemen may, if they please, meet in
what they have denominated caucusses when
power was in other hands ; they may then confer
together about the measures in which they may
think proper to unite ; but, sir, if their debates are
to take place there, and there alone, if we are not
to be furnished here by them with the reasons
which induce them to adopt public measures,
they ought at least to open their doors to the mi-
nority, in order that, if they cannot hear their ar-
guments in the proper place, they may not close
them altogether. I trust, sir, that |;entlemen
themselves will see the impropriety of persever-
ing in this line of conduct, and that they will con-
sent to pay, if not to gentlemen in the minority,
at least to their propositions, the attention ana
respect which they may deserve.
Mr. Qriswold said, that he presumed the sen-
tleman from Virginia (Mr. Randolph) had re-
quested that the extract from the report of the
Secretary of the Treasury might be read, and
which the House had iust heard, for the purpose
of proving that the resolution under consioeration
ought to pass. Indeed that report, and the state-
ment to which it referred, evmced in the most
satisfactory manner that the information required
by the resolution was absolutely necessary for the
purpose of enabling the House to decide under-
standingly on the proposition, which it was ex-
pected would soon be brought forward, for abol-
ishing the internal taxes. The Secretary in his
report had declared that the expense of collecting
the internal taxes amounted nearly to twenty per
cent, on the amount collected. . It appeared, how-
ever, from the statements to which the Secretary
had alluded; that the tax on stills, the carriage
tax, the tax on licenses, on sales at auction, and
the tax on refined sugar, had been included in one
class, and the expense of collecting all those taxes,
without distinguishing the charges on each branch,
had been stated to be nearly twenty per cent.,
whilst the expense of collecting the stamp duty,
another brancn of the internal taxes, was snort of
^Y^ per cent., varying only a fraction from the
charges on the revenue from impost and tonnage.
These statements might be satisfactory as far as
they went, but it was obvious that in examining
451
HISTORY OF CONGRESS.
452
H.ofR.
Internal Revenues,
January, 1802
the branches of a revenue, with a view to the ex-
pense of collection, it became necessary to ascer-
tain the precise charge which had fallen on each
branch, and to obtain this necessary information,
and which the report and statements had left de-
fective, the resolution had been principally brought
forward. And what had rendered this informa-
tion peculiarly necessary at this time was the
ffround which had been taken in opposition to the
internal taxes. The only argument which he had
heard against those taxes, and which did not
equally apply to the impost, was drawn from the
great expense which had arisen in the collection.
To enable the House, therefore, to decide whether
the fact existed on which that argument had been
founded, it became necessary to inquire in the
manner proposed by the resolution whether the
extraordinary expense with which those taxes
had been charged might not be diminished, and
whether the expense really existed in relation to
each description of them.
Mr. G. said that he presumed no gentleman was
prepared to say that the general expense of col-
lection might not be diminished, and so far was he
from believing that every branch of the internal
taxes was subjected to tne charge of nineteen or
twenty per cent., he was perfectly confident that
if gentlemen would a^rce to the resolution, the
detailed statements, wnich the Secretary would
furnish in obedience to it, would prove that the
expense of collecting certain branches of those
taxes would fall much short of the sum at which
the same has been estimated.
The consent of the House, said Mr. G., to every
call for information, had formerly been so much a
matter of course, that he should not have troubled
the House with any remarks upon so plain a ques-
tion as the present, had not the experience of this
<iay proved, that gentlemen were not always to be
indulged by the House with the information which
they required ; and the profound silence which
had at this time been ooserved hy those gentle-
men who could either admit or reject the resolu-
tion, appeared to indicate a determination on their
|»art to refuse the important and necessary inform-
ation required by the resolution. He did pre-
sume, however, that upon this occasion the House
would consent to the resolution, and more partic-
ularly, as the report of the Secretary of the Treas-
ury, which had been read at the request of the
gentleman from Virginia, proved so clearly the
necessity of passing it.
Mr. HuGER could not reconcile it with his sense
of duty, to give a silent vote on the present occa-
sion, nor could he but lament the strangeand novel
course of proceeding^ which gentlemen had thought
proper to adopt. The intention, it would seem, was
to repeal the internal taxes, right or wrong, and at
all events ; and so determined were gentlemen on
carryinfiT this favorite project into execution, that
everything like previous investigation, or even a
wish togain information on the subject, was hoot-
ed at and treated with the most sovereign con-
tempt. Every, the smallest, reduction on taxes
of any other description, was avowedly to be ex-
cludea, uor was any proposition to this effect
deemed worthy of even a moment's consideration.
The measure proposed, however, interested in a
very particular manner that part of the commu-
nity he had the honor to represent. They paid,
it was true, a small portion of the internal taxes,
but the various other taxes upon salt, brown sugar,
coffee, &c., and the duties on imposts generally,
fell more immediately and far more heavily on
them. Was it not natural, therefore, that he
should have some hesitation on the subject ; that
he should feel anxious to see this project thor-
oughly and completely investigated ; tnat heshould
wish to receive every possible information which
might either tend to satisfy his mind as to the ex-
pediency of repealing the internal taxes only, to
the total exclusion of all others, or enable him to
Eropose some other project, equally beneficial per-
aps to the public at large, and which might at
the same time accord better with the immediate
interests of his constituents 1
That peace had been restored to the country,
and the moment consequently approached when
that House might hope to diminish the burdens of
their constituents, could not but afford infinite sat-
isfaction to every gentleman present. He rejoiced
most sincerely at the pleasing prospect, and felt
much gratification in the idea of contributing
with others to afford this relief to the community.
He had not, indeed, any very particular hostility
to the repeal of any items of the internal taxes
which might be found oppressive or inconve-
nient to any portion of his fellow-citizens; nor
would he object even to the exclusive repeal of
the whole of them, if, upon due consideration,
it appeared that by so doing, such peculiar and
important advantages would accrue to the great
family of America, as would, upon an enlarged
and national view of the subject, compensate nis
constituents for the greater quantum of public
burdens which would thereby be entailed on them.
When fortunately, however, the state of things
seemed to admit a diminution of the public bur-
dens, he did conceive that every portion of the
country was equally entitled to the attention of
the Legislature, and that the reductions should, if
possible, be effected in such manner as to extend
an equal and proportionate relief to every descrip-
tion of citizens — as well those who were scat-
tered along the shores of the Atlantic, as those
who inhabited the interior of the country, or had
emigrated beyond the mountains. The House
would recollect how much warmth — notwith-
standing the previous determination to silence —
had been in the course uf a former debate evinced
by the gentleman from Kentucky, (Mr. Davis.)
He could not tolerate a doubt as to the proprier>
of a total repeal of these taxes. The reason of
this was very evident. This description of tax
was that by which his constituents principally
contributed to the exigencies of the Government.
To that gentleman, of course, everything milita-
ting against or tending to delay for a moment the
success of this favorite project, was highly objec-
tionable, and would excite all his sensibility. And
was it not« Mr. H. asked, to be expected that he,
too, should feel some little anxiety at the idea of
453
HISTORY OF CONGRESS.
454
January, 1802.
Internal Revenues,
H.ofR.
this relief being extended to a favored portion of
the community, whilst those he had the honor to
represent were left to istruggle under the weight
01 all those burdens which bore most hard and
most immediately on them? His constituents, he
was proud to say it, had ever contributed with
alacrity and cheerfulness to the wants and exigen-
cies of the Union. They were prepared and wil-
ling, he was confident, to do so still; and he made
not the least donbt but that they would readily
subscribe to the exclusive repeal of the internal
taxes, and submit without a murmur, to the con-
tinuation of all the other taxes, however burden-
some to themselves, provided they are convinced
and well satisfied that this measure was fairly
and impartially adopted for the welfare of the
whole, and not for the benefit of the one at the
expense of the other division of the country. It
was for this purpose, therefore, that he wished the
present motion to be adopted, and that he had de-
sired the attention of the Committee of Ways
and Means to be directed particularly to those
articles of importation and of general use and
necessity, such as salt, sugar, coffee, common teas«
dec. He was desirous that these and similar
items should be compared with the carriage tax,
the tax on licenses to retail spirituous liquors, and
various other similar items of the internal taxes,
and that the House might be furnished with such
information with respect to both, as might enable
him to judge, whether there might not be a par-
tial repeal as well of some of the external as in-
ternal taxes, and not a total and exclusive reduc-
tion of the latter, as was contemplated; whilst all
the former, however grievous and inconvenient,
were to be retained. Did he then ask anything
which was unreasonable or improper? Could any
possible inconvenience accrue from allowing him
to obtain the Information he desired? If not, whv
refuse to indul^ him in what he deemed useful,
and what (at the worst) could only be regarded
by gentlemen themselves as superfluous informa-
tion? Was it fair ; was it becoming ; did it com-
port with that civility and politeness which was
due from the one to the other, by citizens of a
common country, assembled together for the ex-
press purpose of consulting upon their common
interests, to treat thus cavalierly what must at
least be allowed to be a respectable minority?
When on his return home, he was asked by his
constituents, how it happened that the burdens on
their brethren of the interior country had been
entirely taken off, and that not the smallest relief
had been extended to them, what answer was he
to give them? The President, he must say, had
hinted something of the kind in his message to
the two Houses, at the commencement of the ses-
sion, and the Secretary of the Treasury had casu-
allv observed in one of his reports, that the inter-
nal tax required more officers and greater ex-
pense to collect it than the duties on imports. For
himself, he certainly had all due deference for
these two officers. He felt personally very great
respect for the gentleman who at this time filled
the office of Chief Magistrate of the United
States. He held also in high estimation the tal-
ents of the Secretary of the Treasury, but not-
withstanding what had fallen from these two gen-
tlemen, his mind was not convinced, nor did he
think these were documents sufficient to satisfy
the minds of that portion of our fellow-citizens
who, from the appearance of things at least, might
conceive that their interests had not been suffi-
ciently attended to, and that in the reduction of
the taxes now existing, justice had not been dealt
out with an imnartialand equal hand. Will not
this impression oe rendered still more strong, when
the citizens in this situation learn that even the
information requested from the public depart-
ments by those to whom they judged proper to en-
trust their interests, had been denied them, with-
out one solitary reason being given for the refusal?
when they are further told, that the various ref-
erences which were attempted to be made in dif-
ferent shapes, or for an inquiry as to the propriety
and possibility of effecting a partial repeal of the
most burdensome external as well as internal
taxes, were again and again rejected?
With respect to the two only reasons which had
ever been offered in favor of the exclusive repeal
of the internal tax, viz: the expense and num-
ber of officers required to collect it, was it not the
immediate and precise object of the resolution
under debate to inquire whether it was not possi-
ble to devise some means by which these incon-
veniences might be obviated, or at least greatly
lessened ? And what objection could there be. to
the inquiry ? Were gentlemen perfectly and en-
tirely convinced that nothing of the kind could
be done, or were they apprehensive that the thing
was in itself so feasible, that an inquiry of this
kind would throw a stumbling-block in the war
of the project already determined on, which al-
though he would freely acknowledge, that as an
abstract proposition it was expedient as much as
possible, and to collect your taxes at as small an ex-
pense, and by means of as few agents as conveni-
ently could be done, yet there was another still
more important maxim which ouffht never to be
lost sight of: this was, that the burdens of the
Government, as well as the advantages which
flowed from it, should be fairly, equally, impartial-
ly, and equitably distributed among every descrip-
tion of the citizens, in whatever part of the coun-
try they resided. If, therefore, it did happen, that
a few more officers and a somewhat greater per
centa^e were required to collect the taxes in one
than m another part of the country, this alone
would most certainly and indubitably not be a
sufficient reason to ao away all the taxes in the
one, and throw the whole burden of the Govern-
ment on the inhabitants of the other.
Mr. H. concluded by observing that he had en-
deavored to consider this whole business as cooly
and with as much temper as was in his power-
that he could not, however, but again express his
regret at the line of conduct adopted by gentlemen ,
and that, as he could not see, nor had there been
pointed out, any possible inconvenience which
could accrue from adopting the resolution, he real-
ly thought the wishes of himself and those who
thought with him on the present occasion, for in-
455
HISTORY OF CONGRESS.
456
H.opR.
Internal Revenues,
January, 1802.
formatioD, ought, in fairness and candor, to be
gratified — supposing even that the information
requested did not appear equally important and
necessary to those who differed with them in
opinion.
Mr. RuTLEDGE confessed himself much puzzled
by the new forms of proceeding this day adopted.
Ever since he had had the honor of a seat in Con-
gress, it had been invariably the practice, when
measures were proposed not agreeable to the ma-
jority, for them to offer their objections to them.
This nad ever been the practice, and the experi-
ence of its convenience offered strong reasons for
its continuance. When the majority stated their
objections to any measure, the minority in sus-
taining it answered them fully: thus, both sides
acted understandio^ly, and when the proceedings
of the National Legislature went out to the people,
they were at the same time informed of the reasons
under which their Representatives had legislated.
This had not only been the usage in Congress, but
the form of proceeding in all representative bodies
with whose history we are acquainted. Even in
the British House of Commons, which gentlemen
had often and emphatically styled a mockery of
representation, so great is the respect paid to pub-
lic opinion, that the majority deem it their duly to
assign in debate the reasons of their conduct.
Although the Minister in England has quite as
much confidence in the strength of his majority
as.gentlemen here can have in theirs, yet^ in feel-
ing power, he does not forget right, and his regard
for public opinion is so great, that he never secures
his measures by a silent vote. In these days of
innovation, we, it seems, are to pursue a different
course. When the resolution offered this morning
by his honorable friend from New York (Mr.
Morris) was taken into consideration, not a voice
was raised against it. This profound silence made
OS expect a unanimous vote; but, in consequence,
he supposed, of some out-door arranjjements, it
was rejected by this silent majority. He had seen
many deliberative assemblies, but never before
witnessed such a procedure. He would not say
whether this was respectful towards the minority,
who, we have been told from high authority, have
their equal rights — he would not say whether it
was dignified as it regarded the majority, but,
without pretending to any spirit of prophecy, he
would venture to say it could not be deemed poli-
tic or wise by the people of this country.
When the doors of Congress were open, and
persons admitted to take the debates, the people
expected to be fully informed of the views and
motives which governed the votes of their Repre-
sentatives. But it seems our constituents are not
to bs treated with this heretofore common civility.
In proposing measures we are obliged to guess at
what gentlemen feel against them, (for they say
nolhino.) and to defend them, without knowing in
what they are objectionable to those who govern
in this House. This kind of governing is but ill
calculated to produce harmony, to restore social
intercourse, and to heal the wounds inflicted on
society by the spirit of party.
His friend from Delaware, not satisfied with
the report made by the Secretary of the Treasury
respecting the expense of collecting the internal
revenues, begs that we may have a further report
and one more in detail, and declares that we really
want more information to assist us in forming our
opinions. But gentlemen refuse this reasonable
request. They may have sufficient information;
they may be in habits of intimacy with the heads of
departments; in daily communion with them; but
we are not, and should act with impertinence,
were we, by our personal applications, to occupy
the time of the heads of departments, which is
fully engaged during the sitting of the Legislature.
The rejrular mode of obtaining information is,
for the House to ask for it. When heretofore in
a majority, he and his friends had always consent-
ed to call upon the heads of departments for any
information the minority said they wanted; he
should continue to vote for asking whenever any
gentleman said he wanted it — though probably he
should not be thanked for it, as gentlemen on the
other side were now so strong as not to want his
vote. A bill had lately been introduced for the
protection of our Mediterranean trade, and the
gentleman on my right, from Virginia, with his
friends, wanted information from the Secretary of
the Treasury respecting the extent and value of
this trade — to know whether it was worth protect-
ing. I voted for the resolution of the gentleman
from Virginia, because he said he wanted inform-
ation. I did not want any, for the reports of the
Secretary of the Treasury for some years past bad
showed the amount of the trade; besides, I deem-
ed it our duty, this nation being highly commer-
cial, to protect our trade in all its branches. Gen-
tlemen on the other side seem to shrink from all
our propositions, lest they should interfere with the
favorite project of annihilating all our internal
revenues. There is no cause lor this apprehen-
sion. The President's Message invites to this
measure, and the friends of the recommendations
of the Executive are too numerous to have their
measures obstructed by our efforts. All we ask
for is information relative to the expense of col-
lecting this part of the public income. Grentlemen
say we shall not have it, and yet, on all past occa-
sions, they talked about the propriety, in a popular
Government, of giving information to the public,
of not economising in diffusing information — they
who now refuse information which is solicited by
a large portion of the Representatives of the peo-
ple. Gentlemen not only withhold information
from us, but will not assign their reasons for with-
holding it ; and to all, we urge they will not deign
to say anything but No.
Mr. Bayard. — I thank God, if we have not the
advantage of hearing gentlemen on the other side
express their opinions, we have still the liberty of
expressing our own sentiments. Not knowing how
long we may have that liberty, I will now slate
further my opinion on the subject before the
House.
The gentleman from Virginia. (Mr. Randolph,)
without condescending tospeak himself, has deign-
ed to ask the Clerk to read — what ! an extract from
the report of the Secretary of the Treasury, show-
457
HISTORY OF CONGRESS.
458
January, 1802.
Import Duties,
H. opR.
ing the aggregate expense attendiog the collection
of the iDternal revenue to be about twenty per
centum. But is this an answer to my inquiry,
when I want particular information that shall dis-
crimii^ate the expense of collecting the different
branches of this revenue ?
I have another object in view. I wish to know
whether the Secretary of the Treasury mav not
devise a plan by which these taxes may be collect-
ed on as good terms as on articles of impost.
When information has been called for hereto-
fore, has it ever been denied ? Have gentlemen a
precedent for their conduct ? Is there an instance
at any epoch when the strength of a silent vote
opposed information that was wanted ? Will this
information thwart the favorite views of some ?
Are gentlemen afraid of information, lest they
•could not carry a favorite project when it should
appear to be opposed to the public benefit ? Are
they afraid to let information come here lest it
should go out to the people ?
If the information we want is refused, without
any reasons being assigned, I do not see what bu-
siness we have to do here. Do gentlemen mean
to drire us from this floor ? Are they ready to
say our services are no longer wanted ? If it is
enough for us to ask a thing to be denied ; if what-
ever we propose is rejected ; if no answer is given
to our arguments ; if we are listened to only to
indulge the laugh of insolent power, I think the
sooner we go home the better. We shall at least
save the money of the nation. And I am satisfied,
if this conduct be pursued, we shall not only be
justified, but it will be expected by the nation that
w^e no longer keep our seats, which are not merely
useless but burdensome to the country.
Mr. GonoARD said, that he had until this time
consoled himself with an idea, that whatever mea-
•^ures might be adopted the present session, he and
those with whom he acted would at least have
been permitted to understand the principles upon
which those measures would be supported. This
consolation he had derived from a declaration,
made at an early period of the session, by an hon-
orable gentleman from Virginia, (Mr. Giles,) that
economy of information was not what he wished
to be practised. But of that solitary consolation,
he had this day been bereft. We have already
made such advances in the system of economy, as
to have arrived at a point where it is thought ne-
cessary to practise economy of information. He
inferred this, from the manner in which the reso-
lutions which had been called up, had been treat-
ed. Several motions had been n^ade. to instruct
the Committee of Ways and Means to inquire
into the expediency of reducing the duties upon
certain imported articles, necessaries of life ; they
had been uniformly repelled. Gentlemen wished,
when the flourishing condition of our finances en-
abled us to reduce taxes, to take a view of the whole
ground — to compare, with each other, the system
of internal and external taxation.
To enable us to do this, a resolution had been
offered, the object of which was to obtain, from the
proper department, information necessary to this
purpose : — that also had been repelled. Another |
resolution is now ofiered, which has in view the
same object, relating to another subject. Gentle-
men seem determined to dispose of that also, in
the same manner, by a silent vote.
Mr. G. said that he could not be persuaded but
that ffentlemen would candidly review the course
they nad adopted, and yet suffer us to have, from
the public ofiices, the information necessary to en-
able us to act correctly upon the business before
us.
The question was taken, and it passed in the
negative — yeas 37, nays 57, as follows :
YxAs — John Archer, James A. Bayard, John Camp-
bell, Manasseh Cutler, Samuel W. Dana, John Dav-
enport, Abiel Foster, Calvin Goddard, Roger Griswold,
William Barry Grove, Seth Hastings, Joveph Hemp-
hill, Archibald Henderson, William H. Hill, Benjamm
Huger, Thomas Lowndes, Ebenezer Mattoon, Lewis R.
Morris, Thomas Morris, Joseph Pierce, Elias Perkins,
Thomas Plater, Nathan Read, John Rutledge, William
Shepard, John Cotton Smith, John Stanley, John Strat-
ton, Benjamin Tallmadge, Samuel Tenney, Thomas
Tillinghast, George B. Upham, Killian K. Van Rensse-
laer, Peleg Wadsworth, Benjamin Walker, Lemuel
Williams, and Henry Woods.
Nats — Willis Alston, John Bacon, Phanuel Bishop,
Richard Brent, Robert Brown, William Butler, Matthew
Clay, John Condit, Richard Cutts, Thomas T. Davis,
William Dickson, Lucas Elmendorf, Ebenezer Elmer,
WiUiam Eustis,John Fowler. Wiltiam B. GUes, Edwin
Gray, Andrew Greggt John A. Hanna, Daniel Heister,
Joseph Heister, William Helms, William Hoge, James
Holland, David Holmes, George Jackson, Charles John-
son, William Jones, Michael Leib, John Milledge, Sam-
uel L. Mitchill, Thomas Moore, James Mott, Anthony
New, Thomas Newton, jr., Joseph H. Nicholson, John
Randolph, jr., John Smilie, Israel Smith, John Smith,
of New York, John Smith, of Virginia, Josiah Smith,
Samuel Smith, Richard Sprigg, Richard Stanford, Jos.
Stanton, jr., John Stewart, John Taliaferro, jr., David
Thomas, Philip R. Thompson, Abram Trigg, John
Trigg, Philip Van Cortlandt, John P. Van Ness, Joseph
B. Vamum, Isaac Van Home, and Robert Williams.
DUTIES ON IMPORTS.
Mr. RuTLEDOE called up for consideration the
resolution which be moved on Friday, on which
the previous question was then taken, viz:
"Resolved, That the Committee of Ways and Means
be instructed particularly to inquire into the expedi-
ency of reducing the duties on brown sugar, coffee, and
bohea tea.".
Mr. Griswold hoped the resolution would be
decided upon.
Mr. RuTLEDOE hoped the reference would ob-
tain. These articles paid the highest rate of duties
and were of the first necessity. In looking over
the rates of duties on imports, he saw many arti-
cles that were taxed enormously high. Those in
the resolution were of the first necessity, the duty
high, and laid when they were at war prices :
while the people received war prices for their pro-
duce, they could with convenience pay for these
articles, though high. The object of the resolu-
tion was merely to inquire^and he did not see how
it could interfere with any object gentlemen have
in view.
459
HISTORY OF CONGRESS.
460
H. OP R.
Import DiUies,
January, 1802.
Mr. Dana. — I beg liberty to lender the homage
of my profound respects, for the dignified situation
in wnich gentlemen have now placed ihemselvesj
and congratulate them on their silence. There is
something peculiarly impressive in this mode of
opposing everything that is urged. It is seldom
that gentlemen have exhibited such a remarkable
appearance of a philosophical assembly.
" That dumb Legislature will immortalize your
name" — is said to have been the language of a
certain distinguished General to acertam nominal
Abb6, who has been represented as having pigeon-
holes full of constitutions of his own maKing.
Daring the memorable night at St. Cloud, when
the French Council of Ancients, and Council
of Five Hundred, were adjourned — to meet no
more — it may be recollected, the powers of exec-
utive government were provisionally committed
to three persons, styled Consuls, and two of them
were the Greneral and the Abb6. From each of
the Councils, twenty-five members were selected,
to compose a commission, and assist the pro-
visional Consuls in preparing a constitution for
France. Of the numerous projects of constitu-
tions presented by the Abb6, it is said no part was
finally adopted, except the plan of a dumb Legis-
lature. This, the General instantly seized, with
apparent enthusiasm, exclaiming to the Abb§,
^' that dumb Legislature will immortalize your
name!" And it was determined to have a corps
legislcUif that should vote, but not debate.
It was scarcely to be expected that anything
like this would soon take place in our own country.
But it is the prerogative of great geniuses, when
in similar circumstances, to arrive at the same
great results, although with some difference in the
process. Nor can 1 forbear ofiering my tribute
of admiration for the genius who has projected
a mode of proceeding among us, that so nearly
rivals the plan adopted in France. I know not to
whom is due the honor of this luminous dis-
covery. After ascribing to him, however, all
merited glory, permit me to examine the force of
the argument relied on by gentlemen in opposi-
tion to the proposed resolution.
Their argument is silence. I hope to be excused
if I do not discuss this subject in the roost satis-
isfactory manner ; as silence is a new species of
logic, about which no directions have been found
in any treatise on logic that I have ever seen. It
will be my endeavor to reply to gentlemen by ex-
amining some points which may be considered as
involved in their dumb arguments.
One of these points is — that certain members
of this House have pledged themselves to their
constituents, for repealing all the internal taxes.
They may have declared their opinions to this
effect, before the election ; and, being chosen un-
der such circumstances, may now deem them-
selves bound in honor not to vary. The terms
assented to between their constituents and them-
selves may, therefore, be viewed by them as the
eirticular rule of their own conduct. But is this
ouse to be regarded in the same light with the
English House of Commons, during the early
period of their history, when the knights of shires,
and the representatives of cities and boroughs,
were instructed on what terms they should bar-
gain with the Crown for special privileges, and
were limited to the price agreed on by their con-
stituents ? The situation of gentlemen who have
thus pledged themselves to vote for repealing the
internal taxes, must be irksome, indeed, if on ma-
ture consideration they should believe it more
proper and more beneficial for the country to have
other taxes reduced. Those who have entered
into a stipulation of this sort, so as to feel it as a
point of honor, are so peculiarly circumstanced
that they might think it too assuming in me, were
I so much as to express a desire that they^ would
vote for reducing some of the duties on imports,
instead of repealing all the internal taxes. It is
to be hoped, the number of members who have
pledged themselves in this manner, does not exceecf
twenty-five or thirty.
Another point involved in this argument of
silence is. that other gentlemen may have pledged
themselves to these, and ^iven them a promise of
support on this subject. It must be acknowledged
that this was more than was required on account
of their scat in this House. If any gentlemen
have absolutely so pledged themselves to others
who had before pledged themselves to their con-
stituents, it must indeed be difficult to convince
them. On this point, their minds must be so dif-
ferently constituted from mine, that there does
not seem to be any common principle between us
that can be assumed as the basis of argumentation.
Another point us. the Executive has recom-
mended a repeal of all the internal taxes, and not
any reduction of the impost. And will gentle-
men act upon this as a sufficient reason for their
conduct? Is it now to become a principle, that
the Executive is to deliberate, and the Legislature
to act, and that no measure is to be adopted unless '
proposed by the Executive? Would it not be
tetter for the country to abolish this House, and
to avoid useless expense, if it is to be nothing more
than one of the ancient Parliaments of France,
employed to register the edicts of a master ?
The silence of the gentlemen may also be con-
sidered as having relation to their great desire for
the harmony of social intercourse. To prevent
its being disturbed in the House by debating, they
may have come to a determination that all the
great questions shall be settled by gentlemen of a
certain description, when met in nocturnal con-
clave, and be only voted upon in this place. If
such be the fact, it seems but reasonable that any
of the members of this House should be admitted
in naeetings of the conclave, as delegates from the
territorial districts are admitted into Congress,
with a right to debate, although not to vote. If|
however, this is thought too much, gentlemen
should at least have galleries provided, so that
other members of the Legislature might be ad-
mitted as spectators, and have the opportunity of
knowing the reasons for public measures.
The question was called for, when Mr. Edstis
begged the Speaker would state it, as, in listening
to the arguments of the gentleman from Connec-
ticut, he liad forgotten it.
461
HISTORY OF CONGRESS.
462
JANUARY; 1802.
Duty on Salt.
H. opR.
Mr. RuTLEDOE said he was much pleased b/ the
question of the hooorable gentlemao from Mas-
sachusetts. When gentlemen ask, What is the
question? it is to be noped that they will respect
its merits ; but, from the scene this day acted, he
had learned that the only inquiry with gentlemen
would be, from what side does this come ?
The question was then taken by yeas and nays,
and lost — yeas 35, nays 58, as follows :
Yka8 — James A. Bayard, John Campbell, Manas-
seh Cutler, Samuel W. Dana, John Davenport, Abiel
Foster, Calvin Goddard, Roger Uriawold, Wm. Barry
Grove, Seth Hastings, Joseph Hemphill, Archibald
Henderson, Wm. H. Hill, Benjamin Huger, Thomas
Lowndes, Ebenexer Mattoon, Lewis R. Morris, Thos.
Morris, Joseph Pierce, Elias Perkins, Thomas Plater,
Nathan Read, John Ratledge, William Shepard, John
Cotton Smith, John Stanley, John Stratton, Samuel
Tenney, Thomas Tillinghast, George B. Upham, Kil-
lian K. Van Rensselaer, Pdeg Wadsworth, Benjamin
Walker, Lemuel WUliams, and Henry Woods.
Nats — Willis Alston, John Archer, John Bacon,
Phanuel Bishop, ^Richard Brent, Robert Brown, Wm.
Butler, Matthew Clay, John Condit, Richard Cutta,
Thomas T. Davis, William Dickson, Lucas Elmen-
dorf, Ebenezer Elmer, William Eustis, John Fowler,
William B. Giles, Edwin Gray, Andrew Gregg, John
A. Hanna, Daniel Heister, Joseph Heister, William
Helms, William Hoge, James Holland, David Holmes,
George Jackson, Wilham Jones, Michael Lcib, John
Milledge, Samuel L. Mitchill, Thomas Moore, James
Mott, Anthony New, Thomas Newton, jun., Joeeph
H. Nicholson, John Randolph, jun., John Smilie, Israel
Smith, John Smith, of New York, John Smith, of Vir-
ginia, Josiah Smith, Samuel Smith, Henry Southard,
Richard Sprigg, Richard Stanford, Joseph Stanton, Jan.,
John Stewart, John Taliaferro, jun., David Thomas,
Philip R. Thompson, Abram Trigg, John Trigg, Philip
Van Cortlandt, John P. Van Ness, Joseph B. Varnum,
Isaac Van Home and Robert Williams.
DUTY ON SALT.
The House then proceeded to the further con-
sideration of a motion on which the previous
question was called for and taken on the twelfth
instant; and the said motion being amended to
read as follows :
"Resolved, That the Committee of Ways and Means
he instructed, particularly, to inquire into the expedi-
ency of reducing the duty on salt ; and, also, the du-
ties on articles of necessary consumption, and more
especially the duties oppressive to the agricultural and
mechanical interests of the community.*'
The main question was taken that the House
do agree tothe said motion, as amended, and passed
in the negative — yeas 32, nays 57, as follows:
Yeas — James A. Bayard, John Campbell, Manasseh
Cutler, Samuel W. Dana, John Davenport, Abiel Fos-
ter, Calvin Goddard, Roger Griswold, William Barry
Grove, Seth Hastings, Jos. Hemphill, Archibald Hen-
derson, William H. Hill, Benjamin Huger, Thomas
Lowndes, Ebenezer Mattoon, Lewis R. Morris, Thos.
Morris, Joseph Pierce, Elias Perkins, Nathan Read,
John Rutledge, William Shepard, John Cotton Smith,
John Stratton, Samuel Tenney, Thomas Tillinghast,
George B. Upham, Killian K. Van Rensselaer, Peleg
Wadsworth, Benjamin Walker, and Lemuel Williams'.
NiiTS — Willis Alston, John Archer, John Bacon,
Phanuel Bishop, Richard Brent, Robert Brown, Wm.
Butler, Matthew Clay, John Condit, Richard Cutts,
Thomas T. Davis, William Dickson, Lucas Elmendorf,
Ebenezer Elmer, William Eustie, John Fowler, Wm.
B. Giles, Edwin Gray, Andrew Gregg, John A. Hanna,
Daniel Heister, Joseph Heister, William Helms, Wm.
Hoge, James Holland, David Holmes, George Jackson,
William Jones, Michael Leib, John Milledge, Samuel
L. Mitchill, Thomas Moore, James Mott, Anthony New
Thos. Newton, jun., Joseph H. Nicholson, John Ran-
dolph, jun., John Smilie, Israel Smith, John Smith of
New York, John Smith of Virginia, Josiah Smith,
Henry Southard, Richard Sprigg, Richu-d Stanford, Jos.
Stanton, jun., John Stewart, John Taliaferro, jun.,
David Thomas, Philip R. Thompson, Abram Trigg,
John Trigg, Philip Van Cortlandt, John P. Van Ness,
Joseph B. Varnum, Isaac Van Home, and Robert Wil-
liams.
And the House adjourned.
Tuesday, January 26.
Memorials of sundry inhabitants of the Territory
of the United States North west of the river Ohio,
purchasers and settlers on the lands originally con-
tracted for by John Cleves Symmes, between the
Great and Little Miami rivers, were presented to
the House and read, respectively praying that Con-
gress will extend tne time for the payments to be
made by the memorialists, on account of the con-
tract between the United States and the said John
Cleves Symmes, and his associates, for the reasons
therein specified ; or grant such relief in the prem-
ises, as to their wisdom shall seem meet.
Ordered, That the said memorials be referred
to the committee appointed, on the eighth ultimo,
to whom was referred the petition of James Mc-
Cashen and others ; and to whom was also refer-
red, on the eighteenth instant, the memorial of
John Cleves Symmes.
The House, resolved itself into a Committee of
the whole House on an act of the Legislature of
the Territory of the United States Northwest of
the river Ohio, entitled ^^ An act declaring the as-
sent of the Territory Northwest of the river Ohio,
to an alteration in the ordinance for the govern-
ment thereof;" to which Commitee of the whole
House were also referred, on the twentieth and
twenty-fifth instant, the petitions of sundry inhab-
itants of the said Territory, in opposition to the
recited act; and, after some time spent therein,
the Committee rose, reported progress, and had
leave to sit again.
An engrossed bill to continue in force an act,
passed on the first day of February, one thousand
seven hundred and ninety*eight, entitled ^'An act
supplementary to the act. entitled 'An act regu-
lating foreign coins, and tor other purposes," was
read the third time, and passed.
Mr. Samuel Smith, from the Committee of
Commerce and Manufactures, to whom was re-
ferred, on the eighth instant, the petition of sundry
merchants of the city of Philadelphia, made a re-
Sirt; which was twice read, and agreed to by the
ouse as follows :
** The Committee of Commerce and Manufactures,
463
HISTORY OF CONGRESS,
464
H. OF R.
Proceedings,
January, 1802
to whom was referred the petition of Daniel W. Coxe
and others, merchants of Philadelphia, report :
" That the petitioners state that they are deprived
of the drawbacks on goods of foreign growth and man-
ufacture, and on salted provisions, shipped by them
horn the port of Philadelphia to ports of foreign nations,
although they had complied with every requisite re-
quired by law lor the obtaining of such drawbacks, save
only the taking of the oaths within the ten days pre-
4M:ribed by law, to wit : * That the goods were truly in-
tended to be exported, and were not intended to be re-
landed within the United States ;' and the giving bond
that the said goods, or any part thereof, should not be
landed within the United States.
" The petitioners further state, that they appeared at
the custom-house within a very few days after the ten
days (prescribed by law) had expired, and offered to take
the said oaths, and to give the bond required by law ;
when, to their surprise, the Collector informed them
that it was no longer in his power to afford them relief:
They, therefore, solicit Congress to authorize the Col-
lector for the port of Philadelphia to issue the deben-
tures due to them respectively.
" The committee are of opinion that the prayer of
the petitioners ought to be granted, and submit a bill
to that effect.''
Mr. Samuel Smith, from the same committee,
presented a bill for the relief of Daniel W. Coxe
and others ; which was read twice and committed
to a Committee of the whole House on Thursday
next.
Mr. Sprigg reported a bill for the government of
the Territory of Columbia.
[The bill establishes a Legislature, chosen by
the taxable citizens of the United States one
year resident in the Territory, composed of a
House of Representatives, to consist of tweniy-fiye
members, seven whereof to be chosen by the dis-
trict of Rock Creek, seven from the part west of
Rock Creek, and eleven by the county of Alexan-
dria. The Governor to be appointed by the Pres-
ident of the United States. The Territory to pay
the Legislature, and the United Slates the Gov-
ernor. The judges to hold their offices during
life, unless removed by the President on the appli-
cation of two successive Legislatures.]
Referred to the Committee of the whole House
on Tuesday next.
A memorial and remonstrance of sundry inhabi-
tants of the county and town of Alexandria, in the
District of Columbia, was presented to the House
and read, praying that Congress will not agree to
any plan, or pass any- bill respecting the govern-
ment of the said District, which shall, by the es-
tablishment of a subordinate Legislative or subor-
dinate Executive, or otherwise, tend to unite un-
der its power, the two parts of the district, as sep-
arated by the river Potomac. — Referred to the
Committee of the whole House last appointed.
Ordered^ That the letters of the Secretary of
the Department of the Navy and of State, enclos-
ing copies of instructions heretofore issued from
the said Departments, under the direction of the
President, to commanders of armed ships and ves-
sels of the United States, in virtue ot an act of
Congress, entitled "An act further to protect the
commerce of the United States," which were re-
ceived, read, and ordered to lie on the table, on the
twenty-fifth instant, be referred to the Committee
of Ways and Means.
The House resolved itself into a Committee of
the whole House on the bill to authorize the set-
tlement of the account of Samuel Dexter, for his
expense in defending against the suit of Joseph
Hodgson ; and, after some time spent therein, tde
Committee rose, and reported the bill without
amendment.
Ordered, That the bill be engrossed, and read
the third time to-morrow.
On motion, it was
Resolved, That a committee be appointed to in-
quire into the situation of the several tracts and
parcels of land which have been granted, appropri-
ated, or reserved, for the support of public schools
and seminaries of learning, and for the support of
religion, within the Territory of the United Slates
Northwest of the river Ohio; and that the com-
mittee take into their consideration what measures
are necessary, and ought to be adopted, to carry
fully into efl'ect the design of every such grant,
appropriation, or reservation.
Ordered, That Mr. Fearing, M. Davis. Mr.
Gray, Mr. Robert Williams, and Mr. Foster,
be appointed a committee, pursuant to the said re-
solution ; and that the said committee be author-
ized to report by bill, or bills, or otherwise.
Mr. MiTCHiLL, from the committee appointed,
on the fifteenth ultimo, presented a bill for revi-
sing and amending the acts concerning naturali-
zation ; which was read twice and committed to
a Committee of the whole House on Monday next.
The House resolved itself into a Committee of
the whole House on the report of the Committee
of Commerce and Manufactures, of the fifteenth
instant, to whom was referred the memorial of
Thomas K. Jones; and, after some time spent
therein, the Committee rose and reported to the
House their disagreement to the resolution con-
tained therein; which is in the words following, to
wit:
" Resolved^ That the Collector for the port of Boston
and Charlestown be, and he hereby is, authorized to
issue to Thomas K. Jones the debentures on ten pipes
of wine, imported by said Jones, in the ship Juno, Cap-
tain Thomas Dingley, and exported, on the fifteenth of
June, last, in the ship Enterprize, Captain Hearsy, for
Havana, on full and satisfactory proof being made to
the said Collector of the actual quantity of wine in the
said pipes at the time of their being shipped, as afore-
said: Provided, that every other requisite shall have
been pursued, agreeably to law, for the obtaining the
said drawback.''
On the question to agree with the Committee
of the whole House in their disagreement to the
said resolution, an adjournment was called for;
whereupon, the House adjourned.
Wednesday. January 27.
An engrossed bill to authorize the settlement of
the account of Samuel Dexter, for his expense
in defending against the suit of Joseph Hodgson,
was read the third time; and the further consider-
465
HISTORY OF CONGRESS.
466
January, 1802.
Northwest Territory.
H. opR.
alion of the said bill was postponed until Monday
next.
Petitions of sundry inhabitants of the Territory
of the United States Northwest of the river Ohio,
whose names are thereuntorespectirely subscribed,
to the same effect with the petitions of sundry
other inhabitants of the said Territory, presented
on the twentieth instant, were presented to the
House and read. — Referred to the Committee of
the whole House to whom is committed an act
of the Legislature of the said Territory, entitled
"An act declaring the assent of the Territory
Northwest of the river Ohio to an alteration in
the ordinance for the government thereof."
A memorial of the Philadelphia Chamber of
Commerce, signed by Thomas Fitzsimons, their
President, was presented to the House and read,
praying that a law may be passed by Congress to
autnorize an appropriation for the expenses of sup-
porting, and keepins: in repair, certain piers here-
tofore erected in different places in the river Del-
aware, for the protection of vessels, in inclement
seasons, navigating the said river. — Referred to
the Committee of Commerce and Manufactures.
Mr. Jones, from the committee appointed on
the fourteenth instant, presented a bill authorizing
the payment of two thousand and eight hundred
dollars to Philip Sloan; which was read twice
and committed to a Committee of the whole
House to-morrow.
Mr. John C. Smith, from the Committee of
Claims, to whom was referred, on the thirteenth
instant, the petition of John Carr, and two reports
of committees thereon, made a report; which was
read, and ordered to be committed to a Committee
of the whole House to-morrow.
A Message was received from the President of
the United States, transmitting the accounts of
Indian trading houses, as rendered up to the first
day of January, one thousand eight hundred and
one, with a report of the Secretary of War thereon,
explaining the effects and the situation of that
commerce, and the reasons in favor of its further
extension. The Message and the documents ac-
conipanying the same were read, and ordered to
be referred to the committee appointed, on the
seventh instant, to whom was referred the memo-
rial of Evan Thomas and others.
Ordered, That the report of the Committee of
Commerce and Manufactures, of the fifteenth in-
stant, on the memorial of Thomas K. Jones, to
which the Committee of the whole House report-
ed their disagreement on the twenty-sixth instant,
be recommitted to the Committee of Commerce
and Manufactures.
NORTHWEST TERRITORY
The House asain resolved itself into a Commit-
tee of the Whole on an act of the Legislature of
the Territory of the United States Northwest of
the river Ohio, entitled ''An act declaring the as-
sent of the Territory Northwest of the river Ohio
to an alteration in the ordinance for the govern-
ment thereof;" to which Committee of the whole
House were also referred the petitions of sundry
inhabitants of the said Territory in opposition
thereto : Whereon a debate of some length en-
sued, on the motion of Mr. Fearing, deciding the
constitutionality of the act, which was support-
ed by Messrs. rEARiNO, and Griswold ; and op-
posed by Messrs. Davis, Giles, and Bataro.
On the question being taken, it was lost. Mr.
Giles's motion, verbally modified, was then agreed
to; when Mr. John C. Smith, the Chairman, re-
ported that the Committee had come to the fol-
lowing resolution :
Re9ohed, As the opinion of this committee, that the
act passed by the Legislature for the Territory North-
west of the river Ohio, entitled "An act declaring the
aaaent of the Territory Northwest of the river Ohio to
an alteration in the ordinance for the government
thereof," ought not to be assented to by Congress.
The House then proceeded to consider the said
resolution, and the same being again read, the
question was taken, that the House do concur
with the Committee of the whole House in their
agreement to the said resolution, and resolved in
the affirmative — yeas 81, nays 5, as follows:
Yeas — Willis Alston, John Archer, John fiacon,
James A. Bayard, Phanuel Bishop, Richard Brent,
Robert Brown, William Butler, Samuel J. Cabell, John
Campbell, Thomas Claiborne, Matthew Clay, John
Condit, Richard Cutts, John Davenport, Thomas T.
Davis, John Dawson, John Dennis, William Dickson,
Lucas Elmendorf, Ebenezer Elmer, John Fowler, Wil-
liam B. Giles, Calvin Goddard, Edwin Gray, Andrew
Oregg, William Barry Grove, Daniel Heister, Joseph
Heister, William Helms, Joseph Hemphill, Archibald
Henderson, William H. Hill, William Hoge, James
Holland, David Holmes, Benjamin Huger, George
Jackson, Charles Johnson, Michael Leib, Ebenezer
Mattoon, John Milledge, Samuel L. MitchUl, Thomas
Moore, Lewis R. Morris, James Mott, Anthony New,
Thomas Newton, jr., Joseph H. Nicholson, Thomas
Plater, John Randolph, jr., Nathan Read, John Rut-
ledge, John Smilie, Israel . Smith, John Cotton Smith,
John Smith, of New York, John Smith, of Virginia,
Josiah Smith, Samuel Smith, Henry Southard, Richard
Sprigg, Richard Stanford, John Stanley, Joseph Stan-
ton, jr., John Stratton, John Taliaferro, jr., Benjamin
Tallmadge, Samuel Tenney, Thomas Tillinghast, Phil-
ip'' R. Thompson, Abram Trigg, John Trigg, Philip
Van Cortlandt, John P. Van Ness, Joseph B. Var-
num, Isaac Van Home, Benjamin "Walker, Lemuel
Williams, Robert Williams, and Henry Woods.
Ni.T8 — Thomas Boude, Manasseh Cutler, Abiel Fos-
ter, Seth Hastings, and George B. Upham.
TncHsnAY, January 28.
The House went into a Committee of the
Whole on the bill sent from the Senate, entitled
" An act authorizing the discharge of Lawrence
Erb from his confinement; and. after some time
spent therein, the Committee rose, and reported
the bill without amendment.
Ordered, That the said bill be read the third
time to-morrow.
The House resolved itself into a Committee of
the Whole on the bill to allow a drawback of du-
ties on goods exported to New Orleans, and there-
in to amend the act, entitled " An act to regulate
the collection of duties on imports and tonnage ;"
467
HISTORY OF CONGRESS.
468
H.opR.
Proceedings,
January, 1802.
and, after some time spent therein, the Committee
rose, and reported several amendments thereto;
which were severally read twice, and agreed to
by the House.
Ordered^ That the said bill, with the amend-
ments, be engrossed, and read the third time to-
morrow.
Mr. Sprigg, from the committee appointed on
the eighth ultimo, to inquire whether any, and, if
any, what, alterations or amendments may be ne-
cessary in the existing government and laws of
the District of Columbia, to whom was referred,
on the 11th instant, the memorial of Samuel Har-
vey Howard, register of the court of chancery in
the State of Maryland, made a report; which
was read and considered : Whereupon,
Resolved^ That it is expedient to pass a law au-
thorizing and directing the Marshal for the Dis-
trict of Columbia to collect, by distress and sale of
the goods and chattels of the debtors, or by exe-
cution against their persons, all fees due from re-
sidents in the said territory, which have become
due, or may become due, to the solicitors, attor-
neys, registers, clerks, and other officers of any
courts in Maryland, on any suits, process, or pro-
ceedings, pending in the said courts on the twenty-
seventh day of February, one thousand eight hun-
dred and one.
Ordered^ That a bill or bills be brought in, pur-
suant to the said resolution ; and that Mr. Sprigo,
Mr. Brent, Mr. Foster, Mr. Gregg, Mr. Plater,
Mr. Stratton, and Mr. Bacon, do prepare and
bring in the same.
Mr. EusTis, from the committee appointed on
the seventh instant, to inquire and report whether
any, and, if any, what, amendments are necessary
in the laws respecting the fortifications of the har-
bors of the United States, made a report ; which
was read and considered : Whereupon,
Resolved^ That no amendments in the laws
aforesaid are necessary.
The House resolvecl itself into a Committee of
the Whole on the report of a select committee of
the nineteenth instant, on the resolutions of the
Senate, in the form of joint resolutions of the two
Houses, " in respect to Lieutenant Sterret, the
ofiicers, and crew of the United States' schooner
Enterprize;" to which Committee of the whole
House were also referred the said resolutions of
the Senate ; and, after some time spent therein,
the Speaker resumed the Chair, and Mr. Davis
reported that the Committee had had the said re-
port and resolutions under consideration, and di-
rected him to repeat to the House their disagree-
ment to the said resolutions of the Senate, and
their agreement to two resolutions contained in
the report of the select committee thereupon, in
the form of joint resolutions of the two Houses;
which he delivered in at the Clerk's table.
The House then proceeded to consider the said
report and resolutions: Whereupon, the resolu-
tions of the Senate, to which the Committee of
the whole House reported their disagreement, be-
ing twice read at the Clerk's table, m the words
following, to wit :
*^Reaolved^ by the Senate and House of Representatives
of the United States of America in Congress assembled^
That, as a testimony of the high sense they entertain
of the nautical skill and gallant conduct of Lieutenant
Andrew Sterret, commander of the United States'
schooner Enterprize, manifested in an engagement
with, and in the capture of, a Tripolitan corsair, of su-
perior force, in the Mediterranean sea, fitted out by the
Bey of that Regency to harass the trade, capture the
vessels, and enslave the citizens, of these States, the
President of the United States be requested to present
Lieutenant Sterret with a gold medsd, with such suit-
able devices thereon, as he shall deem proper, and em-
blematic of that heroic action, and the mercy extended
to a barbarous enemy, who three times struck his col-
ors, and twice recommenced hostilities ; an act of hu-
manity, however unmerited, highly honorable to the
American flag and nation ; and that the President of
the United States be also requested to present to each
of the Lieutenants, Porter and Lawson, of the Navy,
and Lieutenant Lane of the Marines, who were serving
on board the Enterprize in the engagement, and con-
tributed, by their gallant conduct, to the success of the
day, a sword, with such suitable devices as the Presi-
dent may deem fit.
" Be it further resolved, In consideration of the in-
trepid behaviour of the crew of the Enterprize, under the
orders of their gallant commander, and their receiving
no prize money, the corsair being dismantled and re-
leased after her capture, that one month's pay, over and
above the usual allowance, be paid to all the other offi-
cers, sailors, and marines, who were actually on board
and engaged in that action ; for the expenditure of which
charge Congress will make the necessary appropriation."
The question was taken that the House do con-
cur with the Committee of the whole House in
their disagreement to the same, and resolved in the
affirmative.
The resolutions contained in the report of the
select committee, to which the Committee of the
whole House reported their agreement, being twice
read, in the words following, to wit :
<' Resolved^ by the Senate and House of Representa-
tives of the United States of America in Congress as-
sembled, That they entertain a high sense of the gallant
conduct of Lieutenant Sterret, and the other officers,
seamen, and marines, on board the schooner Enterpiize,
in the capture of a Tripolitan corsair, of fourteen gone
and eighty men.
"Resolved, That the President of the United Sutes
be requested to present to Lieutenant Sterret a sword,
commemorative of the aforesaid heroic action ; and that
one month's extra pay be allowed to all the other offi-
cers, seamen, and marines, who were on board the En-
terprize when the aforesaid action took place."
The question was taken that the House do con-
cur with the Committee of the whole House in
their agreement to the same, and resolved in the
affirmative.
Ordered^ That the said resolutions be engrossed,
and read the third time to-morrow.
The House resolved itself into a Committee of
the Whole on the report of the Committee of Com-
merce and Manufactures, of the twenty-fifth in-
stant, to whom was referred the memorial of Lyon
Lehman; and, after some time spent therein, the
Committee rose, and reported a resolution there-
upon ; which was twice read, and agreed to by the
House, as follows :
469
HISTORY OF CONQRESS.
470
January, 1802.
Proceedings,
H.opR.
Resolved. That the prayer of the petition of the
said LyoD Lehman is reasonable, and that the said
petitioner ought to be refunded the sum of one
thousand six Hundred and eighty-four dollars, be-
ing the amount of duties he paid on the importa-
tion of three thousand five hundred rifles and car-
bines, and two hundred and eighty-seren pair of
pistols, into the United States, in the year one
thousand seven hundred and ninety-nine.
Ordered^ That a bill or bills be brought in, pur-
suant to the said resolution ; and that the Com-
mittee of Commerce and Manufactures do prepare
and bring in the same.
Mr. Giles laid on the table a resolution to the
following purport :
" Reaoloedf That the census of the Northwestern
Territory be referred to a committee, to consider whe-
ther any and what measures are necessary at this time
relative to granting the people of that Territory a State
GoTemment, and to provide for their being admitted
into the Union."
Mr. Nicholson offered a resolution to the fol-
lowing effect :
** Resohedj That the Secretary of the Treasury be
directed to report to this House what loan office and
final settlement certificates are outstanding and not
paid, and whether accounts have been so kept at the
Treasury that provision can be made for paying them
without subjecting the United States to be defirauded."
This resolution brought on a debate which oc-
cupied the remainder of the sitting. In the course
of It a great diversity of opinion appeared, and the
propriety of altering the statutes of limitation was
discussed. A majority of the House appeared to
be opposed to touching those statutes, and the reso-
lution was finally rejected.
Mr. Samubl Smith, from the Committee of
Commerce and Manufactures, presented a bill for
the relief of Lyon Lehman ; which was read twice
and committed to a Committee of the whole House
to-morrow.
Ordered^ That the committee appointed, on the
twenty-second ultimo, to prepare and bring in a
bill or bills for a revision ana amendment of the
laws for regulating the militia of the United States,
have leave to sit during the sessions of the House.
On motion, it was
Resolved, That the Secretary of the Navy be
directed to lay before this House a statement of
the vessels now belonging to the Navy of the Uni-
ted States, with their present state of equipment,
and the service in which they are, respectively, em-
ployed.
Friuay, January 29.
An engrossed bill to allow a drawback of duties
on goods exported to New Orleans, and therein to
amend the act, entitled "An act to regulate the
collection of duties on imports and tonnage," was
read the third time; and, on a motion made and
seconded^ ordered to be recommitted to the Com-
mittee of Commerce and Manufactures.
The bill sent from the Senate, entitled ^'An act
authorizing the discharge of Lawrence Erb from
his confinement," was read the third time and
passed.
The resolutions in the form of joint resolutions
of the two Houses, which were ordered to be en-
grossed on the twenty-eighth instant, '' expressing
the sense of Congress on the gallant conduct of
Lieutenant Sterret, the officers, and crew, of the
United States' schooner Enterprize," were brought
in engrossed, and read the third time : Whereupon,
Resolved, That this House doth a^ree to the
same, without amendment; and that the Clerk of
this House do carry the said resolutions to the Sen-
ate, and desire their concurrence.
A petition of Oeorge Ash was presented to the
House and read, praying that Congress will pass
a law to confirm to the petitioner a right, in fee
simple, to a certain quantity of land opposite the
mouth of Kentucky river, in the Territory of the
United States Northwest of the river, which has
heretofore been granted to him by the Shawanese
tribe of Indians, for various services rendered to
the said tribe of Indians by the petitioner ; and, al-
so, that he may be entitled to the benefits and priv-
ileges of a citizen of the United States. — Referred
to Mr. Davis, Mr. Mattoon, and Mr. Gregg ;
that they do examine the matter thereof, and re-
port the same, with their opinion thereupon, to the
House.
Ordered, That Lewis Dupre. who presented a
petition to this House on the fifth instant, relative
to the principles of perpetual motion, which, as the
petitioner suggests, have been discovered by him,
have leave to withdraw his said petition.
Mr. J. C. Smith, from the Committee of Claims,
to whom was referred, on the twenty-fifth instant,
the petition of John Brainerd and others, made a
report ; which was read : Whereupon,
Ordered, That the consideration of the said re-
port be postponed until Monday next.
Mr. Inicholson moved the following resolu-
tion:
" Resolved, That provision ought to be made by law
for the payment of such loan office and final settlement
certificates, as may have been lost, and lor the payment
or renewal of which application was made prior to the
12th of June, 1799."
Mr. Nicholson wished the resolution to be re-
ferred to the Committee of the Whole.
Mr. Griswold suggested the proprietv of ma-
king the first reference to the Committee ot Claims,
to ascertain facts; in which he was supported by
Mr. Bataro, and opposed by Mr. Soutraru.
The reference to a Committee of the Whole
was lost ; and then it was referred to the Com-
mittee of Claims.
On motion of Mr. Giles, it was
Resolved, That the census of the inhabitants of
the Territory Northwest of the river Ohio be re-
ferred to a select committee, with instructions to
report whether any, and what, measures ought, at
this time, to be taken for enabling the people of
the said Territory to form a State government for
themselves, to be admitted into the Union upon
the same terms with the original States.
Ordered, That Mr. Giles, Mr. Griswolo, Mr.
Robert Williams, Mr. Rdtlbuoe, Mr. Jones,
471
HISTORY OP CONGRESS.
472
H. OF R.
Samuel Dexter.
February. 1802.
Mr. Lewis R. Morris, and Mr. Condit, be ap-
f pointed a committee, pursuant to the said reso>
ution.
Petitions from sundry inhabitants or' the Terri>
tory of the United States Northwest of the river
Ohio, whose names are thereunto respectively sub-
scribed, were presented to the House and read,
praying that Congress will consider the present
situation of the petitioners, and disagree to any
law or plan that may be passed or devised, con-
trary to their benefit and accommodation, and
which may tend to a separation of the said Terri-
tory into one or more divisions^ in opposition to
the wishes and interest of the petitioners, and other
inhabitants of the said Territory ; also, that Con-
gress will be pleased to consider what measures
may, at this time, be proper to be taken for the
establishment of a State government in the said
Territory, and its admission into the Union.
Ordered, That the said petitions, together with
such parts of the petition of sundry other inhabi-
tants of the said Territory, as relate to the admis-
sion of new States into the Union, whenever it
may be deemed expedient by Congress, presented
on the twentieth, twenty-fifth, and twenty-seventh
instant, be referred to the committee last appoint-
ed; that they do examine the matter thereof, and
report the same, with their opinion thereupon, to
the House.
A memorial of George Helmbold, jun., of the
city of Philadelphia, was presented to the House
and read, praying that Congress will, by law, ex-
tend to all paintings, portraits, and engravings,
executed and published within the United States,
the benefits and privileges contained in the act,
entitled '*An act for the encouragement of learn-
ing, by securing the copies of maps, charts, and
books, to the authors and proprietors of such copies,
during the times therein mentioned," passed the
thirty-first day of May, one thousand seven hun-
dred and ninety.
Ordered^ That the said memorial be referred
to Mr. Jones, Mr. Cutler, and Mr. Mitchill;
that they do examine the matter thereof, and re-
port the same, with their opinion thereupon, to the
House.
The bill authorizing the payment of two thou-
sand and eight hundred dollars to Philip Sloan ;
was taken up in Committee of the Whole, and
ordered to be engrossed, and read the third time
on Monday, next.
Resolved^ That the Committee of Revisal and
Unfinished Business be directed to inquire into
the expediency of continuing in force, for a longer
time, the whole, or any part of an act, entitled
'*An act to augment the salaries of certain ofiicers
therein mentioned," passed the second of March,
one thousand seven hundred and ninety-ninej
which act will expire the second of March next,
and that the committee be authorized to report
such alterations in the salaries of said officers as
to them may seem advisable; and that said com-
mittee report by bill, or otherwise.
Mr. Giles said as a report was soon expected
from the Committee of Ways and Means, it was
important to ascertain the sense of Congress on
the continuance of an establishment attended with
a considerable expense. He said he alluded to
the Mint. If it should appear that this establish-
ment cost more than the benefits derived from iu
he presumed it would be discontinued. He, there-
fore, submitted a resolution, declaring that the
several acts in relation to the Mint ought to be
repealed.
Ordered to lie on the table.
Monday, February 1.
An engrossed bill authorizing the payment of
two thousand and eight hundred dollars to Philip
Sloan was read the third time, and passed.
Mr. Lewis R. Morris, one of the members for
the State of Vermont, presented to the House
two resolutions of the General Assembly of the
said State, agreed to by the two branches of the
Legislature, on the nineteenth and twenty-third
of October, one thousand eight hundred and one.
proposing certain amendments to the Constitution
of the United Slates in the case of the choice of
Electors for President and Vice President of the
United States, and of Representatives to Congress
from the States, respectively, which were read.
and ordered to lie on the table.
On motion, it was
Ordered^ That the committee appointed, on the
thirty-first of December last, on ''so much of the
Message of the President of the United States as
relate to naval preparations, and the establish
ment of sites for naval purposes," be authorized
to cause such documents to be printed for the use
of the members, as may be deemed proper by the
said committee, previous to the presentation of
the same to the House.
A message from the Senate informed tbe Hoa^e
that the Senate have passed the bill, entitled ^An
act for the protection of the commerce and seamen
of the United States, in the Mediterranean and
adjoining seas," with several amendments; to
which they desire the concurrence of this House.
The House proceeded to consider the amend-
ments of the Senate to the bill last mentioned:
Whereupon,
Ordered^ That the said amendments, together
with the bill, be committed to a Committee of the
Whole to-morrow.
The Speaker laid before the House a letter
from the Secretary of the Navy, enclosing a state-
ment of the vessels now belonging to the Navy
of the United States, with their present state of
equipment, and the service in which they are re-
spectively employed, in pursuance of a resolution
of the House of the twenty-eighth ultimo; which
were read and ordered to lie on the table.
The House resolved itself into a Committee of
the Whole on the bill to prevent intrusion on the
public lands, and for other purposes; and, after
some time spent therein, the Committee rose, re-
ported progress, and had leave to sit again.
SAMUEL DEXTER.
A bill for the settlement of the account of Sam-
uel Dexter, Esq., relative to the suit instituted by
Joseph Hodgson, was read a third time.
473
mSTORT OF CONGRESS.
474
Fbbruart, 1802.
Proceedings.
H. orR.
Mr. Alston moved lo postpone the farther con-
sideration of this bill, until the first Monday in
December next. He thought it altogether impro-
per to do anything in the business at that time.
Mr. EnsTis, opposed the postponement and
stated the grounds on which the committee went
who reported the bill. The suit he said was in
fact the suit of the Government. Mr. Dexter
ought !o be indemnified for his expense and time.
Mr. Giles advocated the postponement.
Mr. Bayard observed that the principles had
been correctly stated by the gentleman from Mas-
sachusetts. The suit was substantially the suit of
the Government, and, said Mr. B., I ask if any-
thing can be more flagrantly wrong, more iniqui-
tously unjust, than to allow the suit to be the suit
of the United States, and yet, because we have
the power, deny to pay the expenses.
Mr. Batard, sp<Mce at some length in favor of
the bill and against a postponement, and was fol-
lowed by Messrs. Griswold, Rutledge, T. Mor-
ris, and Hastings, on the same side. Messrs.
Holland, Bacon, and Sprigg, spoke in favor of
postponing. The question for postponement was
then put — for it 36, against it 56.
It was then referred to a Committee of the
whole House, and Mr. J. C. Smith, took the Chair.
The bill was so amended as to authorize the ac-
counting officers of the Treasury to settle Mr.
Dexter's account for the expenses incurred by
the suit, and for his time and personal expenses,
not exceeding six dollars a day, for the time neces-
sarily employed in attending to the suit and in
travelling. In the House the amendment was
agreed to, and ordered to be engrossed for a third
reading — 51 voting in favor of it.
Mr. Giles called up his resolution respecting
the Mint, which he moved should be referred to
the Committee of the Whole; which was agreed
to, and made the order of the day for to-morrow.
Tuesday, February 2.
An engrossed bill to authorize the settlement of
the account of Samuel Dexter, for his expense in
defending against the suit of Joseph Hodgson, was
read the third time and passed.
Mr Sprigo, from the committee appointed, pre-
sented a bill for the relief of Samuel Harvey How-
ard, and other officers of the courts of Maryland ;
which was twice read and committed to a Com-
mittee of the whole House to-morrow.
On motion, it was
Resolved, That. the President of the United
States be requested to inform this House whether
any, and what, measures have been taken for
treating with the Indians south of the Ohio, in
consequence of an act of Congress, passed the
thirteenth of May, one thousand eight hundred,
entitled *'An act to appropriate a certain sum of
money to defray the expense of holding a treaty
or treaties with the Indians."
Ordered, That Mr. Stanley and Mr. Dawson
be appointed a committee to present the foregoing
resolution to the President of the United States.
The House resolved itself into a Committee oi
the Whole on the amendments of the Senate to
the bill, entitled ^'An act for the protection of the
commerce and seamen of the United States in the
Mediterranean and adjoining seas;" and, after
some time spent therein, the Committee rose and
reported their agreement to the same, without
amendment.
The House then proceeded to consider the said
amendments; and. on the question that the House
do concur with the Committee of the Whole in
their agreement to the same, it was resolved in
the affirmative.
The House amin resolved itself into a Commit-
tee of the Whme on the bill to prevent intrusion
on the public lands, and for other purposes ; and,
after some time spent therein, the Committee rose
and reported several amendments thereto ; which
were severally twice read, and agreed to by the
House.
Ordered, That the said bill, with the amend-
ments, be recommitted to the Committee of Ways
and Means.
A Message was received from the President of
the United States transmitting returns of arms,
fortifications, d^c.
The said Message, and the documents accom-
panying the same, were read : whereupon.
Ordered, That such parts thereof as relate to
the military stores of the United States be refer-
red to the committee appointed on the 22d of De-
cember last, on the same subject.
Ordered, That the residue of the said Message
do lie on the table.
On motion, it was
Resolved, That the Secretary of the Navy be
directed to furnish this House with copies of any
documents in his office relative to the object of
the voyage or crews of the frigate Insurgent and
brigantine Pickering, lately belonging to the Navy
of the United States ; and, also, to state the time
when, and the place from whence, they sailed, to-
gether with any other information respecting tneir
loss, which it may be in his power to furnisn.
Wednesday, February 3.
Ml. Davis, one of the members from the State
of Kentucky, presented to the House a letter from
the Secretary of the Treasury, addressed to him
as Chairman of the committee to whom were re-
ferred, on the eighth of December last, and the
eighteenth, twenty-fifth, and twenty-sixtn ultimo,
the petition of James McCashen and others, the
memorials of John Cleves Symmes, and of George
Turner, and the petitions of sundry purchasers and
settlers on the lands originally contracted for by
John Cleves Symmes, between the Great and Lit-
tle Miami rivers, enclosing a letter and report
from the Receiver of the Land Office at Cincin-
nati, respecting the lands applied for under an act
of the last session oi Congress, giving a pre-emp-
tion right to certain purchasers under John Cleves
Symmes ; which were read, and ordered to lie on
the table.
On motion, it was
Ordered, That the report of the committee of
475
HISTORY OP CONGRESS.
476
H. OP R.
Judiciary System,
February. 1802.
the thirtieth of December last, appointed on the
fourteenth of the same month, '* to inquire into
the expediency or inexpediency of giving further
time to persons entitled to mihtary land warrants
to obtain and locate the same ; and, also, to report
what provision ought to be made by law to au-
thorize the Secretary of War to issue military
land warrants, and duplicates of the same, where
satisfactory proof is made that the originals have
heen lost, destroyed, or obtained by fraud," which
lay on the table, be committed to a Committee of
the Whole House immediately.
The House accordingly resolved itself into the
said committee ; and, alter some time spent there-
in, the Committee rose and reported several reso-
lutions thereupon ; which were severally twice
read, and agreed to by the House, as follow :
Resolved, That further time ought to be given to the
holders or proprietors of military land warrants to re-
gister and locate the same.
Resolved, That provision ought to be made by law,
authorizing the holders of warrants, or certificates in
the nature of warrants, under an hundred acres, to lo-
cate the same.
Resolved, That all warrants or certificates located on
a less quantity than four thousand acres, shall be locat-
ed on the unlocated parts of the fifty quarter townships
and fractional quarter townships.
Resolved, That warrants, or certificates in the na-
ture of warrants, which have or shall issue for a quan-
tity less than an hundred acres, shall be located on the
firactional parts of lots that are less than an hundred
acres, and in no other place.
Resolved, That the holders or proprietors of war-
rants for military services, who shall locate the same
on the quarter townships, or fractional part of quarter
townships, after the day of next, shall obtain
patents in their own name.
Ordered^ That a bill or bills be brought in pur-
suant to the said resolutions, and that Mr. Davis,
Mr. Jackson, Mr. Tallmadge, Mr. Dennis, and
Mr. Fearing, do prepare and bring in the same.
Tbe House then went into a Committee of the
Whole on the bill for the relief of Lyon Lehman.
The Committee rose and renorted the same
without amendment ; and the bill was ordered to
be engrossed, and read the third time to-morrow.
The House went into a Committee of the Whole
on the bill for the relief of Daniel W. Coxe and
others ; and, after some time spent therein, the
Committee rose without coming to any decision.
Thursday, February 4.
An engrossed bill for the relief of Lyman Leh-
man was read the third time, and passed.
A remonstrance of sundry inhabitants within
the jurisdiction of the Corporation of Georgetown,
in the District of Columbia, was presented to the
House and read, praying that Congress will not
pass into a law the bill for establishing the Terri-
tory of Columbia, now pending before this House ;
or that the said bill may be so amended or modi-
fied as to augment the powers of the Corporation
of Georgetown, for the convenience and benefit
of the remonstraQtSj and the other inhabitants of
the said District. — Referred to the Committee of
the Whole House appointed on the twenty-sixlh
ultimo, to whom was committed the bill referred
to in the said remonstrance.
A message from the Senate informed the House
that the Senate have passed a bill, entitled ^Aq
act to repeal certain acts respecting the organiza-
tion of the Courts of the United States, and for
otther purposes ;" to which they desire the con-
currence of this House.
The House went into a Committee of the Whole
on the bill for the relief of Daniel W. Coxe and
others; and, after some time spent therein, the
Committee rose and reported the bill with an
amendment.
The House then proceeded to the consideration
of the said bill and amendment : Whereupon, a
motion was made, and the question being put,
that the said bill, with the amendment, be recom-
mitted to the consideration of a Committee of the
whole House, it passed in the negative.
Ordered^ That the farther consideration of the
said bill and amendment be postponed until Mon-
day next.
Mr. Thomas moved the following resolutioa :
<* Resolved, That a committee be appointed to inquire
into the expediency of extinguishing the claims of the
United States for certain balances, which, by the Com-
missioners appointed to settle the accounts between die
United States and the individual States, were reported
to be due from several of the States to the United
States."
Ordered. That the said motion be committed to
a Committee of the whole House on Monday next.
The Speaker laid before the House a letter from
the Secretary of the Navy, enclosing copies of
the sailing orders given to the commanders of the
frigate Insurgent and brigantine Pickering, trans-
mitted in pursuance of a resolution of the second
instant; which were read, and ordered to lie on
the table.
JUDICIARY BILL.
The bill sent from the Senate, entitled ^An act
to repeal certain acts respecting the or^nization
of the Courts of the United States, ana for other
purposes " was read a first time, and Mr. Giles
moved that it should have a second reading.
Mr. Bayaro supposed the object in having it
read a second time was for the purpose of com-
mitting the bill. He thought it should be com-
mitted to the select committee appointed some
weeks ago to take this subject under consideration.
Mr. B. said it was not to produce delay that he
proposed this. On common occasions, there was
no doubt a subject would be so disposed of. He
had no wish to affect any favorite plan gentle-
men have determined on, by proposmg this ref-
erence.
Mr. Randolph thought it proper the principle
of the bill should be settled in Committee of the
Whole, and moved a reference to that effect.
Mr. Giles was in favor of its being referred to
a Committee of the Whole; there was no detail
he said, in the bill. If it should be referred to
the committee proposed, there was no prospect
477
HISTORY OF CONGRESS.
478
February, 1802.
Judiciary System,
H. OF R.
that they would ia any reasonable time make a
report. One of the gentlemen appointed on that
committee had been prevented oy indisposition
from even attending it, and ther^ was very little
prospect of that committee coming to any agree-
ment without that member.
[Mr. G. must have alluded to the members be-
ing equally divided in political sentiments.]
But, said Mr. Q., this is not my only reason for
wishing it to go to the Committee of the Whole.
Gentlemen are mistaken if they think there has
been aay concert on this subject ; or, if there has
been any, it is wholly without my knowledge.
He wished the bill to be taken up on Monday;
there had been great agitation in the community
excited by the subject of that bill. It had been
very ably discussed in the Senate, and it was very
necessary to decide this ffreat Constitutional ques-
tion in tnis House as early as would be consistent
with the importance of the subject; because he
believed the agitation produced in the country
would subside as soon as the business was settled
in this House.
Mr. RnTLEUGE said he was really surprised at
this motion's coming from the gentleman from
Virginia, (Mr. Randolph,) who had moved the
resolution, in consequence of which the select
committee had been raised on the subject of this
bill. The Chairman of that committee had never
called the members together, but let the subject
lie dormant, because he knew it was before the
other branch of the Legislature, and waited for a
decision there ; and now, when it has come to us,
that gentleman is for sending it to another com-
mittee, without first moving to discharge the select
committee. He hoped gentlemen in favor of this
bill would not whip on with such unusual speed
because they are the majority.
Mr. R. said he really could not understand an-
other gentleman from Virginia, (Mr. Giles,)
when he says, to refer the bill to the select com-
mittee, will be to delay the business, because
there would be a tie in the committee, the umpire
being detained by indisposition from attending.
If this tie was in the House instead of the com-
mittee, there would be some grounds for the objec-
tion. But if there should be any appearance of
delay in the committee, the majority of this House
would discharge them immediately.
Mr. R. was disposed to adhere to the forms usu-
ally observed; it was the most correct as well as
fairest mode of transacting business.
Mr. GaiswoLD agreed that in Committee of
the Whole was the proper place to discuss and
decide great and general principles. But in this
bill there were considerable details, and was it
not, he asked, more correct to send it to a select
committee to settle that detail, which could not
be properly done in Committee of the Whole ? As
to the absence of one gentleman on the select
committee, that could be easily remedied by ap-
pointing another in his place.
Suppose the House should go into Committee
on the bill, and a majority say they like the prin-
ciple but do not the detail, must it not then be re-
ferred to a select committee to settle the detail ?
Mr. G. said it had been the uniform practice of
the House to refer in the first instance, and he
hoped the House would not deviate from it. \i.
instead of this bill, there was a resolution ofiered
to this House proposing to repeal the two laws of
last session respecting the Judiciary, then it would
be proper to decide on it first in Committee of the
Whole.
Mr. Smilie advocated a reference to the Com-
mittee of the Whole.
Mr. GoDDARD expressed his solicitude that the
bill should go first to the select committee, that
everything like the pride of party or the pride of
opinion might be prevented from attaching itself
to this bill. When the select committee reported,
and that was taken up in Committee of the
Whole, the discussion would be entered upon
with more candor, and gentlemen would be more
likely to be open to conviction.
Mr. MiLLEOGE was in favor of the motion ; he
wished to call the attention of the House to two
instances where bills had been reported by select
committees without the principles being settled
in Committee of the Whole, and he begged gen-
tlemen to call to mind the consequence of that
mode of proceeding, and the great delay it oc-
casioned.
Mr. S. Smith observed, as there had been some-
thing like censure thrown on the committee ap-
pointed on the subject of the Judiciary, he would
mention some reasons why that committee could
not be expected to have considered the subject
very fully. Some considerable time after the ap-
pointment of that committee, the Chairman (Mr.
Ranoolph) informed the House that he was
Chairman and member of so many committees
that he could not attend to them all, and asked to
be excused from serving on this committee ; when
another gentleman was appointed in his place,
so that the subject could only be considered as
being before the committee from about the 20th of
January.
Mr. Giles said he had been in some measure
anticipated by the gentleman last up. It had been
urged, give the bill to a select committee first to
settle the detail; when it comes forward here, if a
majority should be opposed to the principle, he
would ask whether the reference in such a case
would not be wholly unnecessary ? The principle,
he contended, should first be settled in a Commit-
tee of the Whole.
The- select committee to whom some gentlemen
wished to refer this bill, had, since the 20th of Jan-
uary, had an important and the most voluminous
subject under consideration that would come be-
fore the House the present year. He alluded to
the petition of the Wyoming claimants and the
documents accompanying it, which would take
up the time of the committee for two weeks to
read them through.
Mr. G. said, that if party sensations ever could
be buried, the subject of the bill before them was
the most proper for making an effort, and have
that disposition discovered. Party triumph, he
agreed, had too long predominated, and he hoped
the time would soon come when such triumph
479
HISTORY OP CONGRESS.
480
H. OP R.
Judiciary System.
February. 1802.
would cease. He thought this great Constitu-
tiooal subject had come forward for decision at a
most fortuDate period. There was a general tran-
quillity in the country and a fair discussion could,
be had. The whole bill was a single proposition,
to wit, Shall two laws of last session be repealed?
and it could be very well determined in a Com-
mittee of the Whole.
Mr. Dana acknowledged himself particularly
pleased with the sentiments of the gentleman who
had just sat down. He thought it highly interesting
to our common country that the triumph of party
should be checked on this occasion. The most
likely mode of checking such triumph would be
that the whole business should proceed in its usual
course, and that the majority should not precipi-
tate it excessively. Some most important sub-
jects had been delayed by the members not being
in possession of the documents. This subject
ought to come before them in its least exception-
able shape, that discussion may be had with an
understanding of the subject. It had been said
this bill from the Senate was a single proposition,
because it only proposes to repeal two laws. Qen-
tlemen might call it a single proposition if it were
proposed that the Constitution should be destroyed.
Though it is called a single proposition, it is not
a simple one; on the contrary it is one of the
most complex. It is already determined the Ju-
diciary system shall be abolished, that it shall
swallow up every thing that comes in its way;
yet he thought it ought to be done in such a way
as to do as little injury to others as possible.
Mr. Bayard. — It is urged we should go into
Committee of the Whole to settle the principle
of the bill. There is no principle in the bill. I do
not mean any play upon the words. If a single
insulated principle were to be settled, the course
proposed by gentlemen would be correct. But
we are going to decide a general question, involv-
ing vast details. If gentlemen will unfetter them-
selves from the manacles of party prejudice, they
will on examination find it the correct course that
this bill should go to the select committee.
The object is to repeal the law of last session.
Are there six gentlemen in this House who can say
what that law is? Is there one who can tell me
even how many sections there are in it, or what
is contained in a single section? Is it possible
that the blindness of party spirit can say we will
repeal a law though we do not know what it is?
Would you not on any other subject send a bill
repealing very complex laws to a select committee?
1 ou could scarcely find a section of any law
having so much detail as the first section of this
bill ; the second has also much and the third more
detail. It is not easy to say what acts would be
repealed by this bill. The laws of the last session
were not confined to merely establishing new
courts and new judges, but there were many
wholesome amendments to the old system incor-
porated in these laws, which, if you repeal by this
repealing act, you will be obliged again to estab-
lish in some other way.
A month of close application, by the most in-
dustrious person could not make nim master of
this subject, so as to see the operation of this bill
on those it is intended to affect. And are gentle-
men prepared to say they will repeal those laws
even if on examination they find them useful?
In another more important detail, I will pledge
myself to prove it defective: — with respect to
suits existing originally in the old court, by the
laws of last session, brought into the new court,
and now transferred to the old court again. Can
gentlemen say no criminal will escape ^ustice^
and no man lose his suit by passing this bill?
There never was a general question iavolving
more detail than this bill.
Gentlemen are even frustrating their own ob-
ject. What is the object of gentlemen? They
will lose no time by the mode we propose, we shall
ffain none. I believe the laws of last session will
be repealed ; they are considered as repealed through
the country. A gentleman has said there was no
concert on this subject ; I do not know that it has
been debated in what are called caucuses. (^Mr.
Randolph called to order. The Speaker de-
cided against himj Mr. B. proceeded: I was
about to say, Mr. Speaker, there was no need of
concert in tne business. I was not blaming these
meetings, in what are called caucuses. I do not
see why thirty or forty members may not meet
together to talk on politics, or any other more en-
tertaining subject, as well as a smaller number.
I was astonished to hear the gentleman fron Vir-
ginia (Mr. Giles) say what he did about the agi-
tation of the public mind. Does he tremble at
the agitation this subject has excited ? Does his
security consist in the apathy of public sentiment ?.
The public mind should be agitated on this ques-
tion ; the people should know what we are abouL
If they have any thing to say, I wish to hear it.
I wish it to so to the people, and even that it should
be decided by their vote. This is not a measure
orifi^inating^ from the people ; if it were, the more
it sliould be agitated by the people the betler ir
would be for that gentleman.
I meant no reflection on the select committee
to whom the subject of this bill was referred. I
was not dissatisfied with them, but I am dissatis-
fied with the excuse the gentleman from Mary-
land has made for them. I am sorry he impli-
cated the Speaker in that apology, who, it must
be presumed, knew what committees the gentle-
man from Virginia (Mr. Randolph) was chair-
man of, and of now many he was a member when
appointed chairman of another, from attending
which he very properly afterwards requested to
be excused. It is proper this bill should go to the
select committee, tnat the general question may
be so presented to the House, as that it may be
fairly discussed.
The question on referring the bill to the Com-
mittee of the Whole was then taken, and carried—
54 voting in favor of it.
When the Speaker asked, ^* For what day shall
it be made the order ?" Mr. Davis proposed Mon-
day week.
Mr. Giles believed the business of the session
would not progress until this subject was decided ;
he wished it the order for Thursday next.
481
HISTORY OF CONGRESS.
482
February, 1802.
Proceedings,
H. OP R,
Mr. Batard hoped Monday week would be
agreed to; he had not heard much of the debate
in the Senate, or read a single speech. He wished
time to read the speeches. He knew they could
only rely on the candor and accommodation of
gentlemen for this indulgence. As to those who
had made up their minds upon the subject, and
who did not intend to speak, they could not have
a common feeling with him on this occasion. If
gentlemen would allow them time to prepare, they
would meet the friends of the bill, and discuss its
merits with all that calmness and deliberation on
their part that could be expected. But if {hey
were hurried into the subject, he feared, that with
the exercise of all their Christian patience and
forbearance, it would not be possible.
Mr. Nicholson said, as the gentleman from
Delaware has promised, on the pjart of his friends,
to meet us in the discussion of this question with a
great deal of forbearance, like good Christians, if it
be postponed until Monday week, I shall vote for
that day, and hope it will be carried.
The question for Monday week was then put
and carried — 54 voting for it.
Friday. February 5.
Mr. Smith, from the Committee of Commerce
and Manufactures, to whom was recommitted, on
the twenty-ninth ultimo, an engrossed bill to allow
a drawback of duties on goods exported to New
Orleans, and therein to amend the act, entitled
*'An act to regulate the collection of duties on
imports and tonnage/' reported an amendment
thereto ; which was twice read, and, together with
the said bill, ordered to be committed to a Com-
mittee of the Whole House to-day.
A memorial of sundry citizens of the United
States, and resident merchants of the city of Bal-
timore, and State of Maryland, was presented to
the House and read, praying relief in the case of
numerous and heavy losses sustained by the me-
morialists, in consequence of the illegal capture
and confiscation of their property, under the au-
thority of the French Government, prior to the
promulgation of the late Convention between the
United States and France ; in the provisions of
which compact the memorialists discover an un-
qualified surrender of their claims, instead of the
redress which they expected to obtain. — Referred
to Mr. Giles, Mr. Mitchill, Mr. Edstis, Mr.
Lowndes, Mr. Milledoe, Mr. Tallmadgb, Mr.
Robert Williams, Mr. Davis, and Mr. Gregg ;
that they do examine the matter thereof, and re-
port the same, with their opinion thereupon, to the
House.
On a motion made and seconded that the House
do come to the following resolutions :
"Resolved, That the President of the United States
be, and he is hereby, authorized and empowered to ap-
point one or more Commissioners, as he may deem
necessary, on the part of the United States, to adjast,
on principles of equity, the existing disputes between
the Commissioners of the City of Washington and the
Trustees of the city property, original proprietors, and
other persons who conceive themselves injured by the
7th Con.— 16
several alterations which, from time to time, have been
made in the plan of the city ; and, having adjusted the
same, that he be, and he is hereby, requested to en-
deavor to procure from the trustees aforesaid, a eon-
I veyance to the United States of the streets, squares,
; and other public grounds therein.
"Resolved, That the President of the United States
be, and he is hereby, requested to cause to be prepared
and laid before Congress, for their sanction, a plan of the
City of Washington, conforming, as nearly as may be,
to the original design thereof, except where, in conse-
quence of the alterations made in the same, the rights of
individuals, the principles of justice, and the manifest
interest of the United States, may require a deviation."
Ordered^ That the said motion be referred to
Mr. Dennis, Mr. John Taliaferro, Jr., Mr. Gris-
woLD, Mr. Sprigg, and Mr. Dawson ; to examine
and report their opinion thereupon to the House.
The House resolved itself into a Committee of
the whole House on the engrossed bill to allow a
drawback of duties on goods exported to New Or-
leans, and therein to amend the act, entitled "An
act to regulate the collection of duties on imports
and tonnage ;" and, after some time spent therein,
the Committee rose and reported their agreement
to the amendment proposea by the Committee of
Commerce and Manufactures thereupon ; which
was affain read, and, on the question put thereupon,
agreea to by the House ; and the bill, with the
amendment, was ordered to be engrossed, and read
the third time on Monday next.
The House resolved itself into a Committee
of the whole House on the bill for the relief of
Isaac Zane ; and, after some time spent therein,
the Committee rose and reported progress ; and
on the question that the Committee of the whole
House have leave to sit again on the said bill, it
passed in the negative.
Ordered, That the Committee of the whole
Hou.se be discharged from the farther considera-
tion thereof; and that the said bill be recommitted
to Mr. Jackson, Mr. Fearing, Mr. Van Hornb,
Mr. Davis, and Mr. Bayaru.
Mr. Randolph, from the Committee of Ways
and Means, presented a bill making certain partial
appropriations for the year one thousand eight hun-
dred and two ; whicn was twice read and com-
mitted to a Committee of the whole House on
Monday next.
On motion, of Mr. Giles, it was
Resolved^ That the committee to whom was re-
ferred a Message from the President of the United
States, of the eleventh ultimo, accompanying a
memorial and letter to him, from the Commission-
ers of the City of Washington, be instructed to in-
quire into the expediency of discontinuing the offi-
ces of the Commissioners of the said city ; and to
report by bill or otherwise.
Monday, February 8.
An engrossed bill to allow a drawback of duties
on goods exported to New Orleans, and therein
to amend the act, entitled ^'An act to regulate the
collection of duties on imports and tonnage," was
read the third time.
483
HISTORY OF CONGRESS.
484
H. OF R.
Imprisonment for Debt — The Mini.
February, 1802.
Ordered^ That the further consideration of the
said bill be postponed until to-morrow.
A memorial of sundry merchants of the city of
Philadelphia was presented to the House and read,
praying relief in the case of injuries inflicted on
the commerce of the memorialists, during the late
European war, by the predatory cruisers belong-
ing to the French Republic. — Referred to the com-
mittee appointed on the fifth instant, to whom was
referred a memorial of sundry merchants of the
citv of Baltimore, to the same effect.
A memorial of sundry citizens of the city and
county of Philadelphia, m the State of Pennsyl-
rania, was presented to the House and read, pray-
ixi^ a repeal of the act of Congress, passed on the
thirteenth of February, one thousand eight hundred
aad one, entitled "An act to provide for the more
convenient organization of the Courts of the Uni-
ted States," for certain reasons therein specified. —
Referred to the Committee of the whole House
to whom was committed, on the fourth instant the
bill sent from the Senate, entitled ''An act to re-
peal certain acts respecting the organization of the
Courts of the United States, and for other pur-
poses."
Mr. Southard, from the committee to whom
was referred, on the eleventh ultimo, the petition of
Thomas Bruff, of Joseph, in the State of Maryland,
relative to the principles of perpettuil motion]
which, as the petitioner suggests, have been dis-
covered by him, made a report; which was read
and considered: Whereupon,
Resolved, That the petitioner have leave to with-
draw his petition.
Mr. D. Heister, from the committee appointed
on the 22d of December lasi, presented a bill sup-
plementary to an act, entitled "An act more effec-
tually to provide for the national defence, by estab-
lishing an uniform Militia throughout the United
States," passed the eighth of May, one thousand
seven hundred and ninety-two ; which was read
twice and committed to a Committee of the whole
House on Thursday next.
Mr. Mitch ILL, from the committee to whom
was referred, on the thirty-first of December last,
80 much of the Message of the President of the
United States as relates to "naval preparations,
and the establishment of sites for naval purposes,"
made a report; which was read, and ordered to be
committed to a Committee of the whole House on
Wednesday next.
Mr. Randolph, from the Committee of Ways
and Means, to whom was recommitted, on the
twenty-second ultimo, the bill to amend an act,
entitled "An act to lay and collect a direct tax,"
reported an amendatory bill to amend an act. en-
titled "An act to lay and collect a direct tax within
the United States;" which was read twice and
committed to a Committee of the whole House
on Wednesday next.
IMPRISONMENT FOR DEBT.
Mr. Smilie called up his resolution that a com-
mittee be appointed to revise the laws respecting
imprisonment for debts due the United States.
His objects, he said, were two; to secure the debt-
or's property, and to inflict some penalty or pro-
vide some remedy instead of imprisonment for
life.
Mr. RuTLEDGE was opposed to imprisonment
for life, where the debtor gave up his whole prop-
erty, and was unable to pay all. He had knowa
in South Carolina, revenue ofllcers imprisoned
for debts due the United States, who had been
many years confined ; men of ^pod character, mea
of honesty, but who, through ignorance of trans-
acting certain business, or their misfortunes, were
unable to pay. He knew an individual ot that
State who had applied to that House for relief;
his petition was reierred to the Secretary of the
Treasury ; the Secretary felt a delicacy in inter-
ferine^ in the case ; the petition was not granted ;
and the person had now been in jail Rye years,
though his inability to pay did not arise from hav-
ing wasted the public money, or from aught but
misfortune ; for he was acknowledged to be a man
of good character. He was averse to sucb cruel-
ty. Hence the necessity of making some provis-
ion that the innocent, when distinctions can. as in
most instances, be made, may not be subjected to
cruel punishments, that were of no benefit to the
United States. Why send him to jail ? Why lock
him up there ? Why prevent his being able ro
support his family?
Mr. Smilie.— It is the case that when you ex-
ceed in making your laws what is reasonable,
those laws, as the present concerning debtors to
the United States, will not be executed. The
present law cannot be put in execution. He wish-
ed some sufllcient penalty. This was not the
proper stage to give his sentiments; were it, he
should say, he thought the defaulter ought to give
up the property, and perhaps be imprisoned a pe-
riod. But the Legislature are not the proper
judges, and ought not to interfere; the Legisla-
tive and Judicial departments should be kept sep-
arate. We want some uniform law, operating on
all according to their demerit.
The subject was postponed till to-morrow.
THE MINT.
The House, resolved itself into a Committee of
the Whole on the motion referred to them, on the
first instant, viz :
Reaoivedy That so much of the acU, the one entitled
<' An act establishing a Mint and regulating the coins of
the United States/' the other an act, entitled ''An act
supplementary to the act establishing a Mint, and ref-
lating the coins of the United States," as relate to the
establishing a Mint, ought to be repealed.
Mr. Giles said, he had seen a bill making ap-
propriation for continuing the Mint Establish-
ment ; he knew it was questionable whether or
not it was intended to repeal the law creating that
establishment; his wish was to discover the opin-
ions of the House on the subject. He had ever
been opposed to the establishment from the be-
ginning; he thought we ought to have no estab-
lishment the expenses of which surpassed the
profit — that is, he would have no sinecures, or
persons receiving money without rendering ade-
quate services.
485
HISTORY OF CONGRESS.
486
February, 1802.
The Mint,
H. ofR.
Mr. G. here showed the deficieDcies of the Mint
Establishment. He further observed that the gold
and silver coined in the Mint were better than the
coins of other countries, and were much of them
used by jewellers and silversmiths. The ma-
chinery of the Mint, he was informed, wanted re-
pair; he had also been informed that the ma-
chinery might be disposed of to advantage to the
Bank of the United States; and, perhaps, that
bank might coin for us, and save much expense.
On the whole, he was firm in the opinion that it
was a needless expense, and ought not to be con-
tinued.
Mr. Dana. — If the standard coin is better than
that of other countries, we have only to make the
proper alterations. The question is, whether we
shall have one of our own? By not baviog one
of our own, we shall, as we have been before, be
exposed to many disadvantages, to many frauds
from the circulation of base metal, especially
copper.
Mr. LowNBBS. — We proceed with too much
precipitation. This establishment was made after
mature deliberation, let it not be abolished without
hesitation. We ought to make inquiry ; we want
information on the subject. If, after such inform-
ation on the subject is received as will enable us
to /ote understanding! y. it shall appear improper
to continue the establisnment, I shall he as for-
ward as any one in refiealing the law by which it
was made. I am not in favor of sinecures, more
than the gentleman from Virginia, or any other
member. I will ^o as far in preventlag sinecures,
or the payment oi money where services adequate
are not rendered, as any man. I would not stop
here ; where such sinecures appear, I will join to
abolish them. The duties of the Secretary of
War, especially since the late reduction or the
Army, are now very inconsiderable; the duties of
the Secretary of the Navy and those of the Sec-
retary of War can easily be performed by one of-
ficer. [Called to order.] i wish delay till we
shall receive the necessary information on the
subject.
Mr. S. Smith said, he believed the books now in
the House, and the last report of the Director of
the Mint, furnished all the information necessary.
Mr. Lowndes observed, that there has been no
report this session. A report appears the more
necessary at this time, when the abolishment is
contemplated.
Mr. Giles said, by the report of last session we
have or can receive information sufficient. By
that and other reports it will be found that the
establishment is ex|)ensive, is unprofitable, and
will probably continue so. I can see no need for
revising. I am for abolishing altogether. Per-
haps the coinage may be done by the Bank of the
United States, if it be necessary that it should be
done. I can see no propriety in continuing the
establishment. The gentleman from Connecticut
speaks of uniting the office of Secretary of War
and of the Navy. [Called to order.]
Mr. Holland thought gentlemen had all made
up their opinions; it was, plainly, expensive and
unprofitable. He should vote for repealing.
Mr. MiTCHiLL spoke at considerable length, dis-
coverinp^ much ingenuity and acquaintance with
the subject. He was against a total repeal, espe-
cially as we should be subjected to great inconve-
niences from abolishing the copper coinage.
Mr. Rdtleooe. — If it be true that it is useless,
all will agree in abolishing. It has heretofore
been customary to show, when about to abolish an
establishment, what the state of that establish-
ment was. No such statement has been siven.
Two years ago it was attempted to abolish this
estabhshment, all suitable information was receiv-
ed at that time, and the bill for repealing was
lost. Shall we proceed to act now without in-
formation ?
Mr. R. resetted that he was unable to hear the
gentleman from New York, (Mr.MiTcniLL.) He
perceived that thajt gentleman had viewed the
subject thoroughly*and found that it would be im-
proper to repeal; he hoped the observations of
that gentlemen would have due effect on theopin-
ion of the House. Mr. R. wished the Committee
to rise, without leave to sit again, that the matter
might be referred to a select committee, who
could examine the subject, and would be enabled
to make a report, founded on a knowledge of facts.
He would, however, declare that he bad no predi-
lection for the establishment, nor any wish to
have sinecures, but he had not sufficient knowl-
edge of the present state of the establishment to
vote understandiogly.
Mr. Oriswold. — ^It is admitted there are ad-
vantages arising from the establishment. It has
driven from circulation the base gold of Germany,
and English silver. I had hoped the gentleman
who introduced this resolution would have given
us a statement of the present situation of the
Mint. He was unable to decide till he should
have more knowledge of the subject. If the ad-
vantages exceed the expense, he should be for
continuing; if not, for repealing.
Mr. S. Smith. — If we could eain any further
information, he should be for the Committee's
rising ; but ne thought no iurther information of
importance could 1^ had. Mr. S. went into a
brief exaamination of the expense and the profits.
Among other objections he said that it cost half
a dollar to coin a cent.
Mr. S. observed that we mig^ht, at much less
expense than as now, send to Birmingham, Eng-
land, to have our copf)er coined. If there were a
probabUily of our havios mines of oiJir own, there
might be some pretext lor their continuance.
Perhaps a national pride, or national dignity,
may be the inducement. Such motives did not
actuate him. He had as high sense of national
pride as any, but did not imagine that this was
any mark oi national dignity. The small States
of Germany still coin money, so does Scotland,
but he did not think such coinage any mark of
their independence.
Mr. Dana — If we allow the gentleman to at-
tribute motives to others, he can set up his men
of straw as easily as we can pull them down.
We have no sucn Scotch pride, as represented.
It is important that we should have some Mint
487
HISTORY OF CONGRESS.
488
k
H. OP R.
IJie Mint
February, 1802.
establishment. We ought not to have a fluctua-
ting medium. Whether the present be the best
mode of coinage I know not. I am willing to
make any revisions that may be found necessary.
The gentleman from New York has gone into
the matter fully — has said much to confirm me in
the opinion that this establishment is necessary.
The gentleman from Maryland has told us that
the coinage of every cent costs half a dollar; this
is an assertion that he thought would have ex-
ceeded even the legislative intrepidity of that gen-
tleman.
Mr. RuTLEDOE. — The gentleman from Mary-
land has said much on the subject, all of whicn,
he believed, could be answered in a few words.
Make your copper lighter, if it ought to be; give
alloy to your gold, if that of other countries is not
80 valuable. Let the subject.go to a select com-
mittee, who can see what alterations can and
ought to be made; what offices reduced; what
departments combined, or, perhaps, what parts of
the establishment may be abolished.
Mr. Elmer. — He hoped it would go to a com-
mittee. We want information. We ought well
to consider the inconveniences that may arise
from abolishing. If more evils than benefits grow
out of the establishment, he should be for abolish-
ing; if more benefits than disadvantages, he should
wish it to continue. But he wanted information.
He was not then content to decide.
Mr. MiTCHiLL. — We were again unable fully to
hear Mr. M. His observations appeared to be
mostly directed to the subject of copper coinage,
and to show the necessity of coining our own.
He corrected Mr. S. Smith with respect to his
statement of Scotland's coining her own money.
The place where the coining was done, to which
Mr. S. iflluded was a place of confinement for
convicts — he had been there and well knew. Mr.
M. went largely into the subject of base copper
coinage; the danger of great disadvantages arismg
to us from the introduction of it here, unless we
had copper coinage of our own to prevent it.
Mr. S. Smith. — He could not see how we should
be able to obtain further information. He would
explain as to what the gentleman from Connec-
ticut had said. His assertion of the expense (that
every cent costs half a dollar) was a lapmts lin-
gtuB', he did not mean to have it understood as
literally true.
Mr. &ATARD. — It was not to be supposed that
because gentlemen wished the Committee to rise,
they were opposed to the resolution — the object
was to have the subject go to a select committee,
who might give it an attentive examination, from
documents which they might, but which were
not now obtained. In addition to the learned and
cogent observations of the gentleman from New
York, he would ask what be had to guard against
the introduction of base coins ? We had been,
and we should again be, liable to impositions, es-
pecially from the circulation of Spanish gold.
Another consideration was, the necessity of
some regulated medium in small change. Cop-
pers had heretofore passed two. four, and six for
one. There were persons whose sole business was
speculating in these base metals. Coppers were
brought by the cask from Birmingham ; after a
short time circulating their baseness was discov-
ered— their value sunk, and the loss generally
fell on the poorer class of citizens. The poorest
cf the people were in this manner taxed in one
year far more than the amount of supporting this
establishment.
Mr. B. duly appreciated the knowledge and tal-
ents of the gentleman who introduced this reso-
lution. They may be equal to the united talents
and knowledge of a committee of five ; yet such
was not common. It was not usual for 07te to inquire
so deeply — so fully — as a committee of several.
The gentleman from Maryland informs us that
we can send to Birmingham to have our coining
done; true, but the gentleman might have gone
much further; the expenses of legislation are
great; we may also send to Westminster to have
our laws made, and thus save the expense of four
or five hundred thousand dollars. Our own coin-
age is moreover emblematic of our sovereignty;
this consideration ought to have some effect.
If on inquiry it should be found proper to abol-
ish wholly the institution, he should readily join;
but he was not ready without reflection or dis-
tinction to go any length with those who seem
actuated only by an indiscriminate rage for pull-
ing down and destroying establishments.
Mr. Randolph. — He thought the banks were
sufficient to prevent the circulation of base money.
He asserted that nineteen-twentieths of the silver
in circulation was not coinage of our own, bat
Spanish milled dollars and their parts. He could
not see how our sovereignty was affected by hav-
ing our coinage done elsewhere, any more than by
the purchase of cordage or the casting of cannon.
The gentleman from Delaware laughs at the
idea of going to Westminster for our laws. Mr.
R. was surprised at this. He had thought the
gentleman a great advocate for such laws — that
It was his favorite doctrine to go there for our
laws. The gentleman had lately taken np the
cause of the poor — a cause with which he is just
becoming acquainted. Should those who had al-
ways advocated their cause become hardened by
prosperity, and forget the professions which had
gained them the confidence of the people, he hoped
and expected they should be dismissed by them.
Mr. R. begged pardon for having detained the
Committee, out as it seemed the order of the day
when a subject was started to consume the whole
day, he believed he was not out of order.
Mr. Giles.*— In the discussion of this subject
gentlemen had branched out exceedingly, but he
believed it all came to one point — the want of in-
formation. He had some days since notified that
he should introduce the resolution. He was sat-
isfied no further information of consequence would
be obtained, and there is already sufficient to ena-
ble us to judge correctly. It is hinted that it will
be proposed to obtain a report from the Mint. He
believed it unnecessary. Mr. Boudinot is in Phil-
adelphia. We must send to him — he will report
when he pleases, and after all we shall receive no
information of any consequence.
I
489
HISTORY OF CONGRESS.
490
February, 1803.
The Mint.
H. ofR.
There is a difference betweea this and olher
countries. Other nations need to coin their own
money ; it is not with them the general, but the
partial good ; it is aggrandizement of individuals,
the trappings of roysuty. Here it is true you es-
tablished a Mint; you have raised armies and
fleets. &c. to create an Executive influence; but
what do the people say now ? They send men
here now to govern, who shall not govern for
themselves, but for the people.
Mr. Dana. — When we snail be deprived of the
right of debating, it will be full time for gentle*-
men to criminate, but not now. The gentleman
from Virginia, as usual, talks more or less to the
purpose on every subject on which he undertakes
to speak ; like the sun on a cloud he may illumi-
nate in some measure, but neither mve nor leave
any lasting substance or weight. Mr. D. was in
favor of the resolutions going to a select com-
mittee.
Mr. Macon. — The Mint has been in operation
ten years — see what has been done — its inutility
is evident. Money goes constantly from here to
the East Indies ; will not the American dollars
go? Shall we be always coining? Mr. M.
thought the Bank of the United States might be
authorized to coin.
Mr^S. Smith was of the same opinion.
Mr. RuTLEnoE, also; and he wished inquiry
might be made of the bank whether it could be
done, and on what terms, before he undertook to
abolish.
Mr. R. dilated on the necessity of continuing
the copper coinage, at least; and he wished the
resolution to go to a select committee, who should
thoroughly understand the subject, and show
what could best be done ; he was not for thus rap-
idly hastening in the work of indiscriminate de-
molition.
Mr. GRiBWOLn. — The gentleman from Virginia
thinks he has all necessary information on the
subject; far was Mr. 6. from thinkinsr he had; he
would inform the gentleman from Virginia that
the coinage of copper will pay its own expense,
and more. Perhaps it will oe best to abolish the
coinage of gold and silver, and retain onlv the
copper; he did not know; he wished it referred
to a committee who should be able, on examina-
tion, to decide.
Mr. Batard. — He acknowledged there had
been aberrations from the subject ; but he believed
those had been most guilty who had made the
most complaint of others. We have been told
that it is our object to delay. Why is this charge
made? Has it any foundation in truth? If there
he delay, the fault is not ours ; and I call on them
to show whence is the delay of which they com-
5 lain, and from what cause it arises. If there be
elay. those are the authors of it who have all
power in their own hands — not the minority.
Grentlemen have said we have all necessary in-
formation on the subject. I have not — others have
not. We know not on what terms it might be
possible to agree with the bank, should it be
thought advisable to discontinue the establish-
inent ourselves ; should it be thought best to con-
tinue the establishment, we know not how much
lower might be the salaries of the officers con-
cerned ; from the vaunting declarations of some
gentlemen, that we are become so much moreen-
lightened, so much more patriotic than formerly,
so ready to hug the doctrine of virtue's being its
own reward, he was induced to think there might
be found men who would conduct the establish-
ment, without salaries, without any other fee or
reward than the sweet gratification of having
served the people. Any communication from the
Director of the Mint can be easily and readily
procured, if necessary.
Gentlemen have informed us that the coinage
of every cent costs fifty cents. Is it this kind of
information that gentlemen have, and on which
they rely? The /act is not so. The establish-
ment has been expensive from the coinage of gold
and silver, not from that of copper, which more
than pays itself.
Gentlemen talk of royalty, and very awkward-
ly charge the late admmistrations of attachment
to monarchical measures ; if they prefer the sub-
ject to any other irrelevant matter, he had no ob-
jection, but he did not wish to have attributed to
himself sentiments he had never suggested. He
had said that the coining of our own was a mark
of our sovereignty, not of our royalty, as insinu-
ated. He did not consider that royalty and sove-
reignty was the same thing ; the people original-
ly, or their power given to their delegated govern-
ment, constituted the sovereignty. Why do gen-
tlemen endeavor to catch the popular ear by their
empty vociferations, charging the late adminis-
trations, and the present minority m Congresa,
with a rondness for royalty? Why fore ver sound-
ing this imaginary attachment in our ears ? The
time will come — it must come — when the people
will be undeceived ; when they will jud^e of men,
of their Government, not by their vain profes-
sions, but by their actions.
The gentleman (Mr. Ranoolph) endeavors to
have it believed that I am attached to English
laws ; SO; indeed, I am to many of the sacred
Erinciples of those laws — the trial by jury, the
abeas corpus, &c. — principles avowed in the Bill
of Rights of our constitutions, principles brought
with us from England, in which we have been
educated, and which I hope will ever continue to
distinguish, to govern us; principles that could
never impel me to tear down or root up, with the
rase of revolutionary spirit, all that is useful or
valuable, without hesitation, without distinction ;
yet that gentleman never heard me express a fond-
ness for English laws, in the sense in which he
wishes it to be understood.
The gentleman talks of my taking just now the
poor under my protection. The time did exist
when the poor did not need that protection, when
nothing was done to injure them ; it is now alter-
ed ; now the rich are to be freed from taxes, dkc.,
and the poor to be oppressed ; never was there a
time when, more than now. they needed protec-
tion.
On dividing, there appeared in favor of the
I Committee's rising 33 — against it 54.
491
HISTORY OF CONGRESS.
492
H. or R.
The Mint,
February, 1802.
Mr. RuTLEDGE then moved that the resolution
be referred to a select committee ; he hoped his
motion would prevail, if it should not, he should
not regret having made it; that when this mania
for ruin should be over, and the time should come
for cool reflection, it might appear that attempts
were made for stopping it.
Mr. Giles. — Gentlemen talk of warmth; he
had not seen it ; it is, however, natural for them
to be warm ; they were in the minority ; but he
did not wish the imputation of warmth thrown
on himself.
Mr. Bayard. — I acknowledge the i^entleman
has been cool, but he has said warm tilings ; he
has accused the last Government of an attach-
ment to monarchy ; he has talked much of royal-
ty, Executive influence, &c. He may feel very
cool himself when making these unfounded sug-
gestions, but they are not calculated, nor do they
appear intended to make others so.
Mr. Dana. — The gentleman says he is cool ; I
have observed he is usually so when employed,
as he often is, in eulogizing himself and friends;
he talks with all the coolness of self-complacency.
Mr. Dennis. — Gentlemen have acknowledged
the probability that the coining of copper, at least,
may be profitable ; why not, then, consent to refer
to a select committee, who can make all necessa-
ry arrangements? It were curious, indeed, that
a resolution to repeal should go to a committee to
alter and revise. He had no predilection for the
Mint Establishment ; he believed, as it was now
managed, it was expensive, and he doubted the
propriety of continuing it without alterations;
those alterations ought not to go to the coining
of copper ; for that would certainly be useful.
A motion was then made and seconded that the
said resolution be referred to ^ select committee, to
consider and report thereupon to the House.
On which motion the question being taken that
the House do agree thereto, it passed in the nega-
tive— yeas 33, nays 54, as follows :
Ykas — James A. Bayard, Thos. Boude, John Camp-
bell, Manasseh Cutler, Samuel W. Dana, John Daven-
port, John Dennis, Abiel Foster, Calvin Goddard, Roger
Griswold, William Barry Grove, Seth Hastings, Joseph
Hemphill, Archibald Henderson, William H. Hill, Ben-
jamin Huger, Thomas Lowndes, Lewis R. Morris,
Thomas Morris, Joseph Pierce, Thomas Plater, Nathan
Read, John Rutlcdge, John Cotton Smith, John Stanley,
John Stratton, Benjamin Tallmadge, Samuel Tenney,
George B. Upham, Peleg Wadsworth, Benjamin Walk-
er, Lemuel Williams, and Henry Woods.
Nats — Willis Alston, John Archer, John Bacon,
Theodoras Bailey, Phanuel Bishop, Richard Brent,
Robert Brown, William Butler, Samuel J. Cabell,
Thomas Claiborne, Matthew, Clay, John Condit, Thos.
T. Davis, John Dawson, Lucas Elmendorf, Ebenezer
EUner, John Fowler, William B. Giles, Edwin Gray,
Andrew Gregg, John A. Hanna, Daniel Heister, Jo-
seph Heistcr, WUliam Helms, William Hoge, James
Holland, David Holmes, George Jackson, Charles John-
son, William Jones, Michael Leib, Samuel L. MitchiU,
Thomas Moore, Thomas Newton, jun., Joseph H. Nich-
olson, John Randolph, jun., John Smilie, John Smith, of
New York, John Smith, of Virginia, Josiah Smith,
Samuel Smith, Henry Southard, Richard Sprigg, Rich-
ard Stanford, Joseph Stanton, jun., John Taliaferro, jun.,
David Thomas, Thomas Tillinghast, Philip R. Thomp-
son, Abram Trigg, John Trigg, Joseph B. Vamom,
Isaac Van Home, and Robert Williams.
And then the main question being put, that the
House do agree to the said resolution, as reported
from the Committee of the Whole House, it was
resolved in the affirmative.
Ordered^ That a bill or bills be brought in, pur-
suant to the said resolution; and that Mr. Giles.
Mr. MiTCHiLL, and Mr. Holland, do prepare and
bring in the same.
Tuesday, February 9.
The House proceeded to the farther considera-
tion of an engrossed bill to allow a drawback of
duties on goods exported to New Orleans, and
therein to amend the act, entitled "An act to regu-
late the collection of duties on imports and ton-
nage," which was read the third time on the eighth
instant: Whereupon,
Besoloed, That the said bill do pass, and that the
title be, "An act to allow a drawback of duties on
goods exported to New Orleans, and therein to
amend the act, entitled *An act to regulate the col-
lection of duties on imports and tonnage."
Mr. SpRiGG,from the committee to whom was re-
ferred, on the nineteenth ultimo, the petition of
sundry inhabitants of the City of Washington, in
the District of Columbia, made a report; which
was read and considered : Whereupon,
Resolved, That it is expedient to pass a law in-
corporating a company for the purpose of opening^
a navigable canal, to connect the waters of the Po-
tomac river with those of the Eastern Branch
thereof, through Tiber creek, and the low lands at
the foot of the Capitol Hill.
Orderedj That a bill or bills be brought in pur-
suant to the said resolution ; and that Mr. Sprigg,
Mr. Brent, and Mr. Foster, do prepare and bring
in the same.
Mr. Davenport, from the Committee of Revi-
sal and Unfinished Business, presented a bill to
continue in force "An act to augment the salaries
of certain officers therein mentioned," which was
read twice and committed to a Committee of the
whole House on Monday next.
The Speaker laid before the House a letter
from the Secretary of the Treasury, the Secretary
of War, and Comptroller of the Treasury, to the
Commissioners appointed in pursuance of the act,
entitled ';An act, for the relief of the refugees from
the British provinces of Canada and Nova Sco-
tia," enclosing certain documents relative to the
claims of Elijah Ayer, deceased, and Elijah Ayer.
junior, refugees from Nova Scotia; which was
read, and ordered to be referred to the Committee
of the whole House to whom was committed, on
the twenty-fifth ultimo, the report of the Com-
mittee of Claims on the petition of Caleb Eddy.
Ordered, That the Committee of the whole
House to whom was committed, on the eighth in-
stant, the report of the committee appointed on
the thirty-first of December last, on so much of the
i
493
mSTORY OF CONGRESS.
494
FebruarTj 1802.
Internal Revenue* — Courts of Maryland.
H. ofR.
Message of the President of the United States as
relates to " naval preparations, and the establish-
ment of sites for oaval purposes," be discharged
fronoi the consideration thereof ; and that the said
report be recommitted to Mr. Mitchill, Mr. Rut-
LEDOB, Mr. EnsTis, Mr. Newton, and Mr. John-
son.
The House resolred itself into a Committee of
the whole House on the bill makine certain par-
tial appropriations for the year one thousand eight
hundred and two ; and, after some time spent there-
in, the Committee rose and reported an amend-
ment thereto ; which was twice read, and agreed
to by the House.
Ordered, That the said bill, with the amend-
ment, be engrossed, and read the third time to-mor-
row.
The House resolved itself into a Committee of
the whole House on the bill for the relief of Sam-
uel Harvey Howard, and other officers of the courts
of Maryland ; and, after some time spent therein,
the Committee rose and reported an amendment
thereto ; which was twice read, and agreed to by
the House.
Ordered, That the said bill, with the amend-
ment, be engrossed, and read the third time to-mor-
row.
Wednesday, February 10.
Mr. S. Smith, from the Committee of Com-
merce and Manufactures, to whom were referred
the memorials and petitions of sundry manufac-
turers of gunpowder, of bats of types, of brushes,
and of stone ware, within the United States, made
a report ; which was read, and ordered to be com-
mitted to a Committee of the whole House on
Monday next.
The House resolved itself into a Committee of
the whole House on the report of the Committee
of Claims, of the twenty-seventh ultimo, to whom
were referred the petition of John Carr, and two
reports of committees thereon; and, after some
time spent therein, the Committee rose and report-
ed their disagreement to the same.
Ordered, That the said report of the Commit-
tee of the whole House do lie on the table.
An engrossed bill makins certain partial appro-
priations for the year one thousand eight hundred
and two, was read the third time, and passed.
INTERNAL REVENUES.
Mr. Davis moved the following resolution :
**Reaoived, That the several laws imposing duties on
stillB, and on domestic distilled spirits, refined sugar,
licenses to retailers, sales at auction, pleasurable car-
riages, and on stamped vellum, parchment, and paper,
ought to be repealed ; and that the Committee of Ways
and Means be, and they are hereby, instructed to re-
port a bill conformably to this resolution."
Mr. Davis assigned as reasons for this motion,
that the business, though long submitted to the
Committee of Ways and Means, had not yet been
reported upon, and the necessity of coming to an
immediate decision.
Those opposed to the motion stated that it had
been determined in that committee to repeal the
internal revenues ^ that certain details in the re-
pealing bill were not yet settled, but soon would
oe ; and that of consequence no time would be
gained by its adoption.
On the question, whether the House would take
the above motion into consideration, it passed in
the negative — yeas 40, nays 57, as follows :
Ybas — Willis Alston, James A. Bayard, Phanuel
Bishop, Thomas Boude, Robert Brown, William BuU
ler, Samuel J. Cabell, John Campbell, Matthew Clay^
John Clopton, John Condit, Thomas T. Davis, John
Dawson, John Dennis, William Dickson, John Fow-
ler, Edwin Gray, William Barry Grove, John A. Han-
na, Joseph Heister, Joseph Hemphill, Archibald Hen-
derson, William Hoge, George Jackson, Michael Leib,
Thomas Moore, Thomas Morris, James Mott, Thomas
Plater, John Rutlcdge, John Stanley, John Stratton,
John Taliaferro, jun., Philip R. Thompson, Abram
Trigg, George B. Upham, Isaac Van Home, Benja-
min Walker, Robert Williams, and Henry Woods.
Nats — John Archer, John Bacon, Theodorus Bailey,
Thomas Claiborne, Manasseh Cutler, Richard Gutts,
Samuel W. Dana, John Davenport, Lucas Elmendorf,
Ebenezer Elmer, William Eustis, Abicl Foster, Calvin
Goddard, Andrew Gregg, Roger Griswold, Seth Hast-
ings, Daniel Heister, WiUiam Helms, William H. Hill,
James Holland, David Holmes, Benjamin Huger,
Charles Johnson, William Jones, Thomas Lowndes,
Ebenexer Mattoon, John Milledge, Samuel L. Mitchill,
Lewis R. Morris, Thomas Newton, jun., Joseph H.
Nicholson^ Joseph Pierce, John Randolph, jun., Na«>
than Read, William Shepard, John Smilie, Israel
Smith, John Cotton Smith, John Smith, of New York,
John Smith, of Virginia, Josiah Smith, Samuel Smith,
Henry Southard, Richard Stanford, Joseph Stanton,
jun., Benjamin- Tallmadge, Samuel Tenney, David
lliomas, Thomas Tillinghast, John Trigg, Philip Van
Cortlandt, John P. Van Ness, Joseph B. Varnum, Kil-
lian K. Van Rensselaer, Peleg Wadsworth, and Lem-
uel Williams.
Ordered, That the said motion do lie on the
table.
COURTS OF MARYLAND.
An engrossed bill for the relief of Samuel Har-
vey Howard, and other officers of the courts of
Maryland, was read the third time ; and, on the
question that the same do pass, it passed in the
affirmative — yeas 56, nays 36, as follows :
I Yeas — Willis Alston, John Archer, John Bacon,
I Theodorus Bailey, James A. Bayard, Phanuel Bishop,
Robert Brown, William Butler, Samuel J. Cabell, John
Campbell, J'homas Claiborne, Matthew Clay, John
Condit, Richard Cutts, John Dawson, John Dennis,
Lucas Elmendorf, Ebenezer Elmer, Abiel Foster, John
Fowler, William B. Giles, Andrew Gregg, John A.
Hanna, Daniel Heister, William Helms, Joseph Hemp-
hill, David Holmes, George Jackson, William Jones,
John Milledge, Samuel L. Mitchill, Thomas Newton,
jun., Joseph H. Nicholson, Thomas Plater John Ran-
dolph, jun., John Smilie, Israel Smith, John Smith, of
New York, John Smith, of Virginia, Samuel Smith,
Henry Southard, Richard Stanford, Joseph Stanton,
jun., John Stratton, John Taliaferro, Jan., Samuel Ten-
ney, David Thomas, Philip R. Thompson, Abram
Trigg, John Trigg, Philip Van Cortlandt, John P. Van
Ness, Joseph B. Varnum, Isaac Van Home, Benja-
min Walker, and Henry Woods.
495
HISTORY OF CONGRESS.
496
H. ofR.
John Carr,
February, 1802.
Nats — Thomas Boude« John Clopton, Manasseh
Catler, Samuel W. Dana, John Davenport, Thomas T.
Davis, William Dickson, Calvin Goddard, Edwin Gray,
Roger Griswold, William Barry Grove, Seth Hastings,
Archibald Henderson, William H. Hill, William Hoge,
Benjamin Huger, Michael Lcib, Thomas Lowndes,
Ebenezer Mattoon, Thomas Moore, Thomas Morris,
James Mott, Joseph Pierce, Nathan Read, John Rut-
ledge, William Shepard, John Cotton Smith, Josiah
dmith, John Stanley, Benjamin Tallmadge, Thomas
Tillinghast, George B. Upham, Killian K. Van Rens-
selaer, Peleg Wadsworth, Lemuel Williams, and Rob-
ert Williams.
*" Resolved^ That the title be '"An act to author-
ize the coUeccioa of fees due to the officers of the
respecti7e courts in tbe State of Maryland, from
persons residing in the Territory of Columbia, by
the Marshal of the i^aid District.''
Thursday, February 11.
The Speaker laid before the House a letter from
Richard Sprigg, one of the members for the
State of Maryland, containing his resignation of
a seat in this House; which was read, and ordered
to lie on the table. '
On motion, it was
Ordered^ That Mr. J. Taliaferro, Jr., be ap-
pointed of the committee "to inquire whether
any, and. if any, what, alterations or amendments
may be necessary in the existing government and
laws of the District of Columbia, and to report
by bill, or otherwise," in the room of Mr. Sprioo,
who hath, this day, resigned his seat in the House.
Mr. Davis, from the committee appointed, pre-
sented a bill in addition to an act, entitled ''An
act in addition to an act regulating the grants of
land appropriated for military services, and for
the Society of the United Brethren for propaga-
ting the Gospel among the Heathen ;" which was
read twice, and committed to a Committee of the
whole House on Monday next.
The Speaker laid before the House a letter
from the Secretary of the Treasury, accompany-
ing a statement of goods, wares, and merchandi-
ses, exported from the United States, from the
first ofOctober, one thousand eight hundred, to the
thirtieth of September, one thousand eight hun-
dred and one, inclusive ; which was read, and order-
ed to lie on the table.
A message from the Senate informed the House
that the Senate have passed the bill, entitled ^'An
act to authorize the settlement of the account of
Samuel Dexter, for his expenses in defending
against the suit of Joseph Hodgson," with several
amendments; to which they desire the concur-
rence of this House.
TheHouse proceeded to consider the saidamend-
ments of the Senate : Whereupon,
Ordered, That the said amendments, together
with the bill, be committed to a Committee of the
Whole House to-morrow.
The House resolved itself into a Committee of
the Whole House on the bill to amend an act, en-
titled " An act to lay and collect a direct tax with-
in the United States ;" and, after some time spent
therein, the Committee rose and reported several
amendments thereto; which were severally twice
read, and agreed to by the House.
Ordered^ That the said bill, with the amend-
ments, be engrossed, and read the third time to-
morrow.
Ordered, That the memorial of Charles Pettit,
of the city of Philadelphia, presented on the thirty-
first of December, one thousand seven hundred and
ninety-nine, and the documents accompanying
the same, be referred to the Secretary of the Treas-
ury, with instruction to examine the same, and re-
port his opinion thereupon to the House.
JOHN CARR.
The House proceeded to consider the report of
the Committee of Claims, of the twenty-seventh
ultimo, on the petition of John Carr, to which the
Committee of the whole House reported the/r dis-
agreement on the 10th instant; and, the said re-
port bein^ twice read at the Clerk's table, in tbe
words following, to wit:
*' That they have duly considered the same, and have
agreed to the report made by the Committee of Claims,
at a former session of Congress, and which is herewith
reported.
* The Committee of Claims, to whom was referred the
petition of John Carr, with the report of a select
committee thereon, having examined and considered
the same, report :
'That the petitioner seeks to obtain the pay and
emoluments of a lieutenant, as if he had continued in
the service of the United States till the end of the war.
*A particular statement of this gentleman's ca«e is
contained in a letter from the Accountant for the De-
partment of War, which is subjoined, and to which the
committee ask leave to refer, and pray that the same
may be received as a part of this report.
< They are of opinion it would not now be expedient
to re-settle accounts which have been, so long since,
adjusted in the proper Departments, and by persons
duly authorized ; and, therefore, that the prayer of the
petition ought not to be granted."
The question was taken that the House do con-
cur with the Committee of the whole House in
their disagreement to the same, and passed in the
negative — yeas 32, nays 58, as follows:
Yeas — Willis Alston, John Archer, Thomas Boude,
Samuel J. Cabell, John Campbell, Matthew Clay, John
Dawson, John Fowler, William B. Giles, Daniel Heis-
ter, William Hoge, James Holland, William Jones,
Michael Leib, Thomas Lowndes, John Milledgc, Thom-
as Newton, jr., Joseph H. Nicholson, Thomas Plater,
John Smilie, John Smith, of Virginia, Samuel Smith,
Henry Southard, Richard Stanford, Joseph Stanton,
jr., John Taliaferro, jr., Philip R. Thompson, Abram
Trigg, John Trigg, Philip Van Cortlandt, Isaac Van
Home, and Benjamin Walker.
Nats — ^John Bacon, Phanuel Bishop, Robert Brown,
William Butler, Thomas Claiborne, John Clopton.
John Condit, Manasseh Cutler, Richard Cutts, Samuel
W. Dana, John Davenport, Thomas T. Davis, John
Dennis, William Dickson, Lucas Elmendorf, Ebenezer
Elmer, William Eustis, Abiel Foster, Calvin Goddard,
Edwin Gray, Andrew Gregg, Roger Griswold, WiUiam
Barry Grove, Seth Hastings, William Helms, Joseph
Hemphill, William H. Hill, David Holmes, Benjamin
497
HISTORY OF CONGRESS.
498
February, 1802.
State Balances.
H. OP R.
Huger, George Jackson, Charlee Johnson, Ebenezer
Mattoon, Samuel L. Mitchill, Thomas Moore, Lewis
R. Morris, lliomas Morris, James Mott, Joseph Pierce,
John Randolph, jr., Nathan Read, John Rutledge,
William Shepard, Israel Smith, John Cotton Smith,
John Smith, of New York, John Stanley, John Strat-
ton, Benjamin Tallmadge, Samuel Tennej, David
Thomas, Thomas Tillinghast, George B. Upham, John
P. Van Ness, Joseph B. Vamum, Peleg Wadsworth,
Lemuel Williams, Robert Williams, and Henry Woods.
And then the main question beine put that the
House do agree to the said report oi the Commit-
tee of Claims, it was resolved in the affirmative,
and so the said petition was rejected.
Friday, February 12.
An engrossed bill to amend an act, entitled '' An
act to lay and collect a direct tax within the Uni-
ted States/' was read the third time, and passed.
A petition of William Henry Harrison, John
Gibson and others, trustees for establishing and
founding an academy, called " The Jefferson Acad-
emy." at Vincennes, in the Indiana Territory, was
5 resented 1o the House and read, praying that a
onation of lands, to which the Indian title has
been, or may be, extinguished, may be granted to
the trustees of the said academy for the accommo-
dation and benefit thereof, under the regulations
therein specified.
Ordered^ That the said petition be referred to
Mr. Randolph, Mr. Cutler, and Mr. Condit;
that they do examine the matter thereof, and re-
port the same, with their opinion thereupon, to
the House
On motion, it was
Resolved^ That the Speaker address a letter to
the Executive of the State of Maryland, inform-
ing him of the resignation of Richard Sprigo,
one of the members of this House, of his seat in
this House, in order that measures may be taken
to supply the vacancy occasioned therebv.
A message from the Senate informed tne House
that the Senate have passed the bill, entitled "Ad
act to extend the privilef^e of franking letters to
the delegate from the Mississippi Territory, and
making provision for his compensation,'^ with
seTerafamendments; to which they desire the con-
currence of this House. The Senate have, also,
passed the bill, entitled "An act for the relief of
Lyon Lehman," with an amendment ; to which
they desire the concurrence of this House.
Ordered^ That Mr. D. Heister be appointed
of the committee to whom was referred, on the
fifth instant, a motion, in the form of two resolu-
tions of the House, '^ respecting the adjustment of
the existing disputes between the Commis.sioners
of the City of Washington and other persons who
may conceive themselves injured by thp several
alterations made in the plan of the said city ; also,
relative to a plan of the said Cily of Washington,
conformably, as nearly as may be, to the original
design thereof, with certain exceptions," in the
room of Mr. Sprigq, who resigned his seat in the
House on the eleventh instant.
Mr. Nicholson, from the committee to whom
had been referred the Message of the President of
the 11th ultimo, and a resolution of the 5(h instant,
made a report which concluded with resolutions
to the following effect:
**That, from the Ist of March next, the offices of two
of the Commiaeioners of the City of Washington ought
to be abolished, and all the duties of the commission be
thereafter vested in one commissioner.
" That the accounts of the commiesion be settled with
the accounting officer of the Treasury before the Ist of
March.
** That such portion of city lots pledged for the repay-
ment of loans made of Maryland, be annually sold, so
as to meet accruing instalments, unless, in the opinion
of the President, too great a sacrifice would thereby be
made ; in which case he Lb authorized to advance the
sum needed from the public Treasury."
Referred to a Committee of the Whole on Mon-
day next.
The House took up the report of a select com-
mittee on the petition of McCashen and others,
which involves the controversy respecting lands
granted to John Cieves Symmes.
Mr. Davis made a brief statement of the facts
attending the business; when, on motion oi Mr.
Nicholson, the report of the select committee
was referred to a Committee of the Whole on
Monday week, in order to give time to the mem-
bers to examine documents, and in other respects
to make themselves acquainted with the case.
STATE BALANCES.
Mr. Thomas called up his motion respecting
State Balances, which is as follows :
"Resohed, That a committee be appointed to inquire
into the expediency of extinguishing the claims of the
United States for certain balances, which, by the Com-
missioners appointed to settle the accounts between the
United States and the individual States, were reported
to be due from several of the States to the United
States, and that the said committee have leave to report
by bill or otherwise."
Mr. TiLLiNOHAST moved to insert in the 7th
line, after the words ^' United States." the words
^'and certain balances reported to be due from the
United States to the individual States."
Mr. Griswolo observed that there were no such
balances in existence — they had all been extin-
guished by being paid.
The amendment was lost without a division.
Mr. Bataru hoped the resolution would pre-
vail. The debtor States, not satisfied with the set-
tlement made by the Board of Commissioners,
bad asked for information respectiog the grounds
on which it had been made. The information had
been imperiously refused. In his opinion it was
but right, if the debtor States did not dispute the
validitv of the debts due to the creditor States,
that they should agree to expunge the claims
against the debtor States. Indeed, he had been
assured that the commission was not instituted
with a view oi sustaining any^ charges against the
debtor States, but for ascertaining the amount due
to the creditor States, and funding them; and he
believed it bad been so understood at the time.
This was an affair not determinable by the ordi-
499
HISTORY OF CONGRESS.
500
H. OP R.
State Balances.
February, 1802.
nary rules applied to individual cases. Many of
the States, not expecting a settlement, had kept
DO accounts or vouchers ; and however great the
supplies they contributed under such circum-
stances, they received no credits for them ; while
those States which had been most careful in the
g reservation of vouchers, shared a different and a
etter fate.
Mr. B. believed it was the true policy of the
creditor States to agree to the extinguishment of
these balances. He believed they never could be
paid, because no State allowed them to be due.
They would not, therefore, be paid voluntarily;
and he knew of no force in the United States to
compel payment. Why, then, keep up a source
of irritation, which could do no possible good, and
which could only tend to repel some States from
that Constitution, which we all ought to endeavor
to make the object of general affection ?
Mr. Southard said, he had yet heard no reason
that convinced him that the resolution offered was
just or proper. It would be recollected that this
contract was made under the Confederation. In
the establishment of our independence, great and
various exertions had been made. In the contri-
butions made, great inequalities took place, which
were unavoidable. Generally, where the war ex-
isted, the States became creditor States. It was
just that those States which had contributed more
than their share should be repaid, and that those
who had paid less should make up the deficiency.
If the debtor States were not to pay their bal-
ances, why settle the accounts? To relinquish
the payment would be, in his opinion, not only
unjust but unconstitutional. Tne Constitution
says, '' All debts contracted, and engagements en-
' tered into, beforetbe adoption of this Constitution,
^ shall be as valid against the United States, under
' this Constitution as under the Confederation ;"
and the present Gk)vernment had recognised those
debts as just. The gentleman from Delaware
says, the settlement is not just. But this was
barely the suggestion of his own mind. To sus-
tain It, he ought to have shown its defects; but
this he had not done.
Mr. Nicholson said, the Constitution declares
that engagements under the new Constitution
shall be as valid as under the Confederation ; that
all the debts of the one should be paid by the
other; but not, as the gentleman from New Jer-
sey seemed to imply, that the United States should
not release their debtors. We do not say. if we
extinguish those balances, that we will destroy our
moral obligation to pay what we owe, but that we
will release those who are said to be indebted to
us. Mr. N. believed the balances ought to be ex-
tinguished. To have enforced their payment when
they were first declared to be due, might have
hazarded the integrity of the Union ; and he was
persuaded that it would not be politic in the Uni-
ted States at any time hereafter to call for them.
But the present motion goes no further than to
appoint a committee to inquire into the expediency
of extinguishing them, and he presumed that there
would be no objection to making the inquiry.
Mr. MiTGHiLL was in favor of the resolution, as
he believed a refusal to adopt it would be attended
with unpleasant sensations. He judeed so from
an historical review of the business. The several
States had associated together for their common
defence, and, in the eye of equity, whatever that
defence required, should constitute a common
charge. The accounts of expenses thus incurred
were not settled till the new Grovemment was es-
tablished. That Government fixed the mode of
settlement ; it appointed a board of referees, to
report the debts and credits of the respective States.
In this report, it was the fortune of certain States,
notwithstanding the greatness of their contribu-
tions, to be reported debtor States. These States
became debtors from the independent spirit with
which they asserted their sovereig[n rights. Not
relying on the general contributions, they fur-
nished great supplies without making any chaise
to the Union ; by exerting all their strength, they
paid as they went, and preserved no vouchers of
what they paid. This, he averred, was the case
as to the State which he had the honor in part to
represent; a State as willing as able to contri-
bute, and which did contribute to a great extent;
but which had neglected to preserve her vouchers,
the preservation of which would have made her a
creditor State. He believed, therefore, that in
equity, the States were not bound to pay these
balances. But to this it is replied, the award is
final. He would not agree to that ; he denied it.
Besides, there was a want of coercive power in
the United States to enforce those demands.
From this consideration alone, we ought to pro-
ceed with lenity* and endeavor to make the settle-
ment a peaceable one. As in other circumstances,
we ought to make a virtue of necessity.
Mr. MiTCHiLL said, he had been told by a for-
mer Secretary of the Treasury, that this settle-
ment was only intended as a record for the books
of the Treasury, and never intended to be carried
into execution as to the debtor States.
Mr. Elmer had no objection to the business
^oing to a committee. But he would observe that
It was considered at the time the board was formed,
that, on a settlement, the debtor States should
pay, and the creditor States be paid. On examm-
ing the journals of Congress, it would be found
that payment had been actually pledged. It
would be found, too, that the debtor States had
gained matlv by the war. For instance. New
York, wnioh nad such an extensive western ter-
ritory, had gained more than New Jersey, which
had- none. Whatever may have been the secret
understanding that the deotor States were not to
pay, it was not so understood by the people of the
United States.
It is said that there is no way of enforcing these
balances; but that is no argument for striking
them off altogether. Though they are now en-
forced, there may be future circumstances under
which the States will be willing to pay them.
New York had already done something, and he
had no doubt other States would do something
Besides, no State in its soverei^ capacity had
applied for an extinguishment. There appeared,
therefore, no propriety in proceeding to such a
[
501
HISTORY OF CONGRESS.
502
February, 1802.
State BalancsB.
H.opR.
measure at this time. If a regard to harmony
was pleaded, that was a strong argument. But,
as yet, we had heard no murmur from the States.
Mr. S. Smith said, be did not rise to take any
part in the debate, but in order to bring the sub-
lect directly before the Committee. To do which,
ne moved so to amend the resolution as to make
it read, '' Resolved, That it is expedient to extin-
guish the claims," ^.
Mr. LowNsis hoped the amendment would not
be agreed to. He did not see the expediency of
Tolunteering a relinquishment of the claims estab-
lished against several of the States. The amend-
ment was calculated to take the Committee by
surprise. The ori^nal resolution went merely to
consider the expediencv of a relinquishment ; the
amendment involyed the principle itself.
Gentlemen had gone into the merits of the main
question. It was true, that all the States had
been engaged in one common cause, and it was
true the contribution should hare been general.
But it was known, that the old Ctorernment had
not the power of obtaining money from the States
in proportion to their capacity ; its only mode was
to recommend. It was known that some com-
plied with the recommendation, and some did not.
The peat business, however, was effected. After
which, to settle the accounts, a board was estab-
lished, in which he believed each State was rep-
resented, which declared certain balances to be
due. Objections are now urged because the pro-
ceedings of this board were not re-examined. But
he would ask whether the debtor States would be
satisfied with any result that brought them in
debt 1 It was well known, that in private tran-
sactions, it was usual to submit the settlement of
a controversy to a board of arbitrators, whose
award was final.
Mr. L. supposed that this plan had been the re-
sult of accommodation. In consequence of it, cer-
tain States had been found debtor, which be pre-
sumed had not made proportionate advances.
Surelv, therefore, it was right they should pav.
For tnese reasons he hoped the Committee would
not be surprised into an adoption of the amend-
ment. He had, however, no objection to refer the
business generally to a select committee.
Mr. Sm iLiE said, he had seconded the motion to
amend, not because he was in favor of the mo-
tion as amended ; for, on this subject, he thought
with the gentleman from South Carolina. But
he thought the principle ought to be settled in
Committee of the Whole, and not in a select com-
mittee. That principle, he thought, was as well
understood now as it ever could m. It lay within
very narrow bounds. Will you forgive your just
debts on the ground of generosity ?
Mr. RuTLBDGB did not think the gentleman
from Maryland had played the General to-day,
though he often did so in that House. He had
made a motion, as if he wished the debtor States
discharged from their balances, and the gentle-
man from Pennsylvania had seconded the motion
for the very opposite reason. He had believed
that the sensibility of the debtor States would
have induced the House to indulge them with a
reference, which would produce a complete de-
velopment of the business. He was willing to
have got this information very fully ; to this he
had no objection, but he certainly telt strong ob-
jections to the amendment.
We are told, said Mx. R., that the tranquillity
of the debtor States is disturbed by hanging up
these debts in your statute books. But where was
the evidence of this? The settlement had been
made many years since, and no State had ex-
pressed any alarm at the prospect of the balances
being paid. If any State had felt an alarm, why
had not the members in this House been requested,
and those in the other branch been instructed to
pursue measures for getting rid of them. The
gentlemen from Delaware and New York talk
about the sensibility of the debtor States, and yet
they tell you the States know they cannot be com-
pelled to pay. He did not understand this kind
of logic.
Mr. R. could not at present vote for a discharge
of these balances. Circumstances may hereafter
arise, which may induce the States to pay them.
Formerly it had been said by a gentleman from
New York, that that State would not pay a cent ;
and yet she had paid a million, which would oth-
erwise have been paid out of the Treasury of the
United States.
[Some gentlemen contested the sum paid by
New York.]
Mr. RuTLBDGE resumed. — If not a million, yet
certainly great payments had been made, ana the
States may find themselves, in peace or in war, in
such a state, as to be benefited by paying these
debts. They may be greatly benefited m dis-
charging them by making roads, opening rivers,
digging canals, and raising bridges. These im-
provements would be highly interesting to several
of the States, and to New York in particular; and
he believed the time would come when they would
be willing to discharge the debts in this way, to
enhance the value of their lands. These were his
impressions. To the reference he had no objec-
tion. But he was not prepared in the present
state of things, without any application from the
States, to vote for releasing them.
Mr. Hill was desirous the amendment should
not be made, not from any indisposition himself
to agree to it, but from a regard to the sentiments
of other gentlemen. Even if it was ascertained
that these debts had arisen on a iust considera-
tion, yet, in his opinion, they ought to be extin-
guished, from the principle that, in our Govern-
ment, whatever hazarded the harmony of the
Union, ought to be avoided. Precedents were
not wanting in which sacrifices were made to this
principle. He alluded to the quieting the claims
under Connecticut rights. But^ whatever might
be the general ideas on this subject elsewhere, he
knew not a man in North Carolina, who did not
believe the adjustment iniquitous. To show the
Committee how the citizens of that State felt, he
would state a case that had occurred before the
Board of Commissioners. Two claims had been
made, both for the same amount and the same de-
scription of supplies, one on one side and one on
503
HISTORY OF CONGRESS.
504
H. OP R.
State Balances,
February. 1802
the other side, of Pedee river; one in North, and
the other in South Carolina ; and, in one case,
seven shillings had been allowed, and in the other,
only sixpence for the bushel of wheat. The busi-
ness generally was entitled to the attention of
Congress. It had, in fact, already been attended
to at different times. New York had extinguished
eight hundred thousand dollars of het balance
under certain provisions applied to her case.
Gentlemen talk of the moral obligation to dis-
charge these balances ; but they go on the princi-
ple that these debts are established. This we de-
ny. We say that in all contracts there are two
parties, and that the United States saying it is a
debt, does not make it so.
The gentleman from South Carolina enforces
the propriety of all the States contributing for the
general defence. We say we have contributed
our full share. This subject had been before the
last Congress. A report was made, but, owing to
press of business, it was postponed. Mr. H. saw
no reason for shutting the door of inquiry, and
therefore, though he felt no hesitation to vote for
the resolution as proposed to be amended, yet to
indulge other gentlemen^ he was in favor of a ref-
erence to a select committee.
Mr. Dennis was against the amendment, as he
wished the subject to go to a select committee,
with a view of obtaining a detailed statement of
all the information connected with it.
Mr. Holland stated that the reason of North
Carolina being a debtor State was, that she had
preserved no vouchers of the operations of her
militia. He was indifferent whether the subject
was taken up directly or referred; but he was
convinced it ought to be examined and elucidated.
The public mind ought to be settled. Why hold
it up m the present state ? Is it that the General
Government may gain a greater ascendency over
the States 7
Mr. Bacon said, if the object of the motion was
to go into a new liquidation of the old accounts
between the United States and the several States,
it would not only take up every day of the pres-
ent session, but the work would be left unfin-
ished for our successors. These debts had been
incurred in a common cause, in which each State
was equally interested, and towards which each
State was bound equally to contribute. When
Congress made requisitions on this principle, they
were accompanied by a promise that there snould
be a final liquidation. This liquidation was made;
the settlement was complete. But this settle-
ment is now objected to, and what is to be done ?
Why we must annul the contract This might
satisfy some of the States, but he was sure it
would dissatisfy others. He saw, therefore, no
end to be answered by the motion. We must
either set aside all that had been done, and begin
de novOj to which this body is incompetent, or rest
satisfied with what is already done.
Mr. R. Williams observed, that since he had
held a seat in the House, this subject had been
almost every session called up. The more he had
heard it discussed, the more he became convinced
of the necessity of getting it out of the way. He
found that whenever it was brous^ht up, all was
imagination. One State contended that it had
contributed largely, and another, that its exertions
had not been surpassed.
We are asked^ why relinquish these balances
before we are solicited by the States? He would
reply that North Carolina never had recognised
the debt, and, in his opinion, never would apply
for its extinguishment. He was in favor of the
amendment, because the principle ought to be de-
cided here, and not in a select committee. What,
indeed, could such committee report ? There were
no vouchers or books whereon the settlement had
been made to be got at. All they could do, then,
would be to report the balances alleged to be due.
which any member could at any time learn.
It seemed almost useless to go into arguments
to show the injustice of the claim, and of conse-
quence, the justice of the resolution. It had been
justly said, that those States which had contribu-
ted the most, had, by the report of the Commis-
sioners, the most to pay; and this was peculiarly
so with the State of North Carolina.
There were other considerations independent of
those of justice, which recommended this meas-
ure. Had any way been pointed out io which
these claims could oe enforced ? But, say gentle-
men, some fortuitous events may happen that may
induce the States to discharge these balances by
building bridges, &c. But, inasmuch as these
claims cannot be enforced, inasmuch as they rest
upon no moral obligation; to continue to hold
them up was to keep alive a perpetual source of
irritation, not in the States, whicn felt too much
indifference to be solicitous, but in this House — a
source of irritation that involved a great waste of
time and money.
Mr. W. had forborne to dwell on the injustice of
these demands. But w^re he to enter on that
branch of the discussion, he should say that the
verv act of destroying all the vouchers was of it-
selt sufficient to justify any suspicion. He should
say, that for what, in some States, there had been
an allowance of one hundred pounds, North Car-
olina had not been allowed twenty shillings.
Could, then, gentlemen talk of moral obligation,
and say that this was a just debt?
Mr. T. Morris said, it was contended that the
accounts should be opened anew and re-exanained.
The fears, therefore, of the gentleman from Mas-
sachusetts, were entirely visionary. The resolu-
tion was a simple one. It proposes to inquire into
the expediency of doing away these debts. The
amendment goes to determine the principle' here.
He thought it proper the principle should be set-
tled here. But gentlemen say they want informa-
tion. If so, after the amendment is ac^reed to, they
may move for a postponement. It the amend-
ment were carried, he would himself move a post-
ponement.
It had been said that New York had had eight
hundred thousand dollars of her debt remitted by
the United States. But how did the case really
stand? New York had availed herself of the act
of Congress, not because she acknowledged the
debt to be just, but because she preferred doing
505
HISTORY OF CONGRESS.
506
February, 1802.
State Balances,
H. OF R.
somethiD^ to remaiaing in the situation towards
the United States in which she stood. It was
strange, then, to hear gentlemen say that New
York bad been favored. What was the fact?
North Carolina, according to the gentleman, had
not, and would not, pay one cent; and New York
had discharged a greater sum than was due by alJ
the other debtor States, with the exception of
Delaware. She was, therefore, instead of being
favored, placed in a worse situation than any other
State. It was from the existence of this state of
things that he wished a final decision to be made
this session. New York having agreed to make
certain payments to the United States, it was im-
portant to her to know whether the United States
meant to enforce payment by the other States.
Her situation would be truly unfortunate, if, after
agreeing to pay, the United States suffered her
claims against the other States to sleep. She
would not only have to pay her <]oota of tne debts,
but would see no prospect of deriving her share of
benefit from the payments of the other debtor
States.
Mr. Macon said the subject was a very old one,
which had occupied much time every session for
many years, and he thought it would be as well
to try the question now as at any other time. No
information of a select committee could throw
any new light upon it.
There was a fact which ought to have great
weight with the Committee. One of the Com-
missioners who made the settlement, who was a
member of this House, had, after the settlement,
proposed a resolution to extinguish the balances of
the debtor States ; and he had stated, as a reason
for this measure, that the principle adopted by the
board had operated very harshly upon particular
States. Mr. M. had it from authority not to be
questioned, that in the settlement by the Commis-
sioners, teams, with the usual number of horses,
had not produced twenty shillings.
This subject had hung ove)- our heads for eight
years, and no scheme was yet devised for collect-
ing the balances. How could they be collected ?
Congress had, it is true, authorized expenditures
by the States in the erection of fortifications ; but
this very act was a tacit confession of the imprac-
ticability of getting the money into the public
Treasury. As to a settlement with North Caro-
lina, it was involved in great difficulty. In the
act of cession of lands by that State to the United
States, it was provided that the territory ceded
should be pledged to pay a proportional share of
the balance due the United States. How could
that share be estimated?
Mr. M. regretted that this subject had been
brought up. He should not himself have been
for bringing it up^ for he thought the claims of the
United States not worth a rush. The truth was,
the States had all exerted themselves in one ffreat
and common cause; they had done their best;
they had acted with great glory. As to the State
which he represented, he would ask if the first
blood that had been spilled after that shed at Bos-
ton was not in North Carolina? and that was the
blood of brother against brother. He desired not,
however, to make comparisons, which were al-
ways unpleasant, but to show that North Caro-
lina had no reason to shrink from an inquiry which
would denaonstrate that she had fully contributed
her share in the common cause, without meaning
to assert that she had done more than other States.
Let, then, Congress decide at once, and abandon
the claims altogether, or devise some plan for col-
lecting them, that we may know how we stand.
Mr. S. Smith said, that when he plroposed the
amendment before the Coounittee, he haa assigned
his reasons for it. He had observed that the de-
bate went to the merits of the main question, and
was apprehensive that, after spending the day in
discussing it, we should at last take a vote, not on
it, but on an incidental point. His object, there-
fore, was to bring the specific proposition before
the Committee. I had, also, anotner motive. I
wanted to spare the time of the Committee. This
was my object. But the gentleman from South
Carolina attributes to me a different motive. He
considers me as interested so far as relates to
Maryland. But that gentleman, it will be recol-
lected, constantly checks other ffentlemen in ascrib-
ing any motives to him, though it is scarcely pos-
sible, in the freedom of debate, to avoid occasion-
ally noticing the motives of gentlemen. He should,
therefore, on this point, be extremely cautious,
while he will not suffer others to attribute motives
to him, to refrain from attributing motives to
them. The truth, however, was, that Maryland,
though nominally a debtor State, was really a
creditor State, and therefore whatever interest he
felt from his relation to that State, would produce
an effect the opposite of that ascribed to him.
The gentleman from South Carolina is also
pleased to call me a General ; he adds, however,
that I have not on this^ as on other occasions,
played the General. I will tell that gentleman in
reply, that, in Congress, I never think of playing
the General My object is always to go directly
to the point, and though I am always disposed to
give the gentleman credit for every good thinff he
says, yet I cannot do so on this occasion, as 1 re-
collect to have found the very same thing in a
newspaper a day or two ago.
This question is of no importance to Maryland,
but it is very important to the United States to
come to a decision upon it. He thought it propef
that the United States should relinquish these
balances: It was also important, so far as it re*
spec ted New York, whom he thought much in-
jured, because, willing to comply with the law of
Congress, she nad paid liberally, while other States
had paid nothing. Why continue the debtor
States? Will it pay a shilling into your T^sa-
ry ? No, it will only sour their minds towards
the Union. Were there any mode of enforcing
the payment of this debt, I should be for it, but
there is no chance of it. I believe that every
State in the Union exerted itself in our common
cause. I believe that no State exerted itself more
than another. We all fought together like bro-
thers. Where there was danger we appeared, and
wherever the enemy was we met him. There
was not a field of battle in South Carolina where
507
HISTORY OF CONGRESS.
508
H. OP R.
State Balances.
February J 802.
there were not to be found the blood and bones of
Marylanders and citizens of other States.
Mr. RuTLEDGE said he was called up by the
observations of the gentleman from North Caro-
lina, who asks, with some force, and seems to
place reliance upon the question, if gentlemen
will not consent to review this settlement? He
would answer, no. We cannot do it. The thing
is impossible ; the vouchers are destroyed ; the
materials for a new settlement do not exist : and
they were properly destroyed. The settlement
once made, they were useless.
The gentleman from Maryland, alluding to what
i said respecting his being a Greneral, says he can-
not give me credit for my remark, as he had before
seen it in a newspaper. Now, sir, I declare I
never saw it in any newspaper ; and I will assure
that gentleman, I feel very sorry for it. as I think
every article that relates to that gentleman well
worthy my attention. Nay, I will seek for the
newspaper, that I may see it. I do not, when I
have anything to say, appear in the press, but I
address myself to this House.
Mr. Dana said, I hope the amendment will not
be agreed to. However gentlemen may be pos-
sessed of a wholesale intellect, that enables them
to decide on interesting questions without a mo-
ment's reflection, I confess I am not blessed with
80 happy an intuition. I do not know that I have
ever been called upon to form an opinion on this
subject. As to a reference of it to a committee,
I think their investigation may be useful, and after
we get that, we may take time to decide. But
now the plan is changed, and we are called upon
to decide at once the principle. This mode of
transacting business may be called an economy of
time. You may give it the name, but it is not
the substance. For my part, I desire to proceed
according to our old plan, and go through the
slow process of investigation. This is my way,
and gentlemen may rest assured that this mode of
hurrying business is not the way to save time, but
to lose it.
Mr. Batard declared himself in fatror of the
amendment, and he could not think, notwithstand-
ing the remarks of his honorable friend from Con-
necticut, that any gentleman in the House was
unprepared to vote upon it. The subject had been
^equently discussed, and he believed that the
House was then as well prepared for a decision
as they would be for a century to come. It in-
volved but a single principle ; and, as to informa-
tion, he could scarcely tell what information was
wanted. He felt much of the indifference of the
fentleman from North Carolina, (Mr. Macon.)
[e ^s sure the United States had neither the
right, or the power to recover these balances j and
he repeated it as his opinion, that it had not been
the original intention that the debtor States should
pay them. Will gentlemen recollect that the
commission was instituted under the old Confed-
eration. Had Congress, then, a right to do any
thing to bind the sovereifi;nties of the independent
States ? All they could do was to pass resolu-
tions making requisitions, which the States might
or might not comply with. They could appoint
commissioners to settle the accounts, but could
they impose the debts upon the States? No, they
could not. It, therefore, never could have been
contemplated that they would establish those
debts. The only effect that could have been con-
templated, was, that the creditor States might relr
that, on a settlement. Congress would assume their
balances.
Mr. B. said, though he thought, and others who
had taken a view of the subject, thought, that
these balances never could or would be recovered,
yet others did not hold the same opinion. He
alluded to those who were not competent to the
taking an enlarged and correct view of the ques-
tion. The opinion entertained by this descrip-
tion of citizens, however unimportant it might be
in other States, was particularly detrimental to
the State of Delaware. He believed thai the ap-
prehension that the balance allotted to Delaware
would have to be paid, materially affected the
value of property in that State. Mr. B. went, at
considerable length, into the general merits of the
question.
Mr. Griswolu said he wished the subject re-
ferred to a select committee, that it might be fully
developed. The ideas of the gentleman from
Delaware were certainly new, and which them-
selves required inquiry, though he believed the
gentleman had overlooked several of the acts cH
the present Government. It would be found that
in 1789, and in 1790, the board had been recog-
nised. The acts of those years gave all the sanc-
tion to the measure that was proper to be given
by the new Government ; and he had supposed
that the settlement made was final and conclusive.
He had been heretofore inclined not to diaehai^e
the States from the payment of these balances.
Yet he felt much disposed to attend to the ideas
of gentlemen. It appeared that the prospect of a
recovery was nearly desperate. . He still, however,
wished the whole subject to be investigated by a
select committee, whose report would enable the
House to arrive at a proper decision.
On the question being put, the amendment was
lost — yeas 41, nays 46.
When the original resolution for referring to a
select committee the consideration of the expe-
diency of eztinguisbinff the balances was carried.
Ordered, That Mr. Thomas, Mr. BAYABn, Mr.
Dana, Mr. Hill, and Mr. Butler, be appointed
a committee, pursuant to the saui resolution.
And the House adjourned.
MoNOAY, February 15.
A petition of sundry inhabitants of the county
of Fairfield, in the Territory of the United States
Northwest of the river Ohio, was presented to the
House and read, praying that the purchasers of
lands formerly the property of the IJnited States,
in the said Territory, maybe exonerated from the
payment of interest which may have, or shall in
future accrue on the amount of the principal, until
the different instalments shall, respectively, be-
come due; that the laws of Congress respecting
the purchase and title of the lands aforesaid may
\
509
HISTORY OF CONGRESS.
510
Febbuart, 1802.
Judiciary System.
H. ofR.
be reyised and amended; also, that two secttoDs
of land in each township, in the said county of
Fairfield, may be granted as a donation for the
purpose of encouraging seminaries of learning
therein.
Ordered^ That such parts of the said petition
as relate to the payment of interest until the in-
stalments of the principal shall, respectirely, be-
come due, and to a revision and amendment of
the laws of Congress respecting the purchase and
title of lands, in the said Territory, be referred to
the Committee of Ways and Means.
Ordered^ That the residue of the said petition
do lie on the table.
A memorial of sundry merchants of the town
of Alexandria, in the District of Columbia, whose
names are thereunto subscribed, was presented to
the House and read, praying relief in the ease of
depredations committed on the ressels and cariroes
of the memorialists, while in pursuit of their law-
ful commerce, by the privateers of the French
Republic, during the late European war. — Refer-
red to the committee appointed on the fifth instant,
to whom was referred a memorial of sundry citi-
zens of the United States and resident merchants
of the city of Baltimore, and State (^ Maryland,
to the same efiect.
The House proceeded to consider th« amend-
ments proposed by the Senate to the bill, entitled
'^An act extending the privilege of franking let-
ters to the Delegate from the Mississippi Territory.
and making provision for his compensation:''
Whereupon,
Re$6lvtd^ ThBl this House doth agree to the
said amendments.
The Speaker laid before the House a letter from
the Secretary of State, accouuNinying his report
on the memorial and petition or Adam Tunno, and
James Cox. and of Thomas Tunno, and John
Price, of Charleston, in South Carolina, mer-
chants and eitixens of the United States, referred
to him by order of the House, on the third in-
stant; which were read, and ordered to lie on the
uble.
The House proceeded to consider the amend-
ment proposed by the Senate to the bill, entitled
''An act for the relief of Lyon Lehman :" Where-
upon,
Ordered. That the farther consideration of the
said amendment be postponed until Monday, the
first of March next.
Mr. Walker, one of the members from the
State of New York, presented to the House cer-
tain resolutions agreed to by the two branches of
the Legislature of the said State, on the thirtieth
ultimo, and the first instant proposing amend-
ments to the Constitution of the United States,
respecting the choice of a President and Vice
President; which were read, and ordered to lie on
the table.
Mr. Fearing, from the committee appointed on
the twenty-sixth ultimo, presented a bill author-
izing the conveyance of certain public lands with-
in the Northwest Territory ; which was read twice
and committed to a Committee of the whole
House on Friday next.
JUDICIARY BILL.
Mr. Davis called for the order of the day on
the Judiciary bill from the Senate.
Mr. Bayard moved a postponement of this bill
to the third Monday in March.
He said he made this motion, as it was not in
the least important that the business should be
taken up on the present day, whereas there were
other objects which required an early attention.
No object could so conveniently be postponed as
this, as it was not to take efiect till the first of
July. It was, therefore, substantially the same
thinff whether the bill passed to-day or three
weeks hence. Its passage now would not save a
cent, or the sooner abolish the circuit courts.
On the oth«r hand, great benefit might be de-
rived from the postponement. It would afibrd
time to discern the operation of the proposed
measure on the public mind. On former occa-
sions gentlemen had contended that the public im-
Eression should have its weight in this House;
e hoped, therefore, on this occasion, they would
not abandon their old principle.
For himself he had not been in the habit so
frequently of applying to the public opinion as
some gentlemen in the House, because few occa-
sions nad occurred so important as this. He did
presume that those who consider this Govern-
ment as the mere creature of the national will,
will not object to the delay asked on purpose to
collect that will. He knew that a great impres-
sion had been made on the public mind bv the
passage oi this act in the other branch ; he knew
that the people in various quarters of the Union
were preparing to tell us what thev thouffht on
the suDJect. Since this business had been before
Confess it was impossible it could have been
felt m all its importance, or contemplated in all
its views in the remote portions of the Union.
On this interesting point the public mind ought
to be known ; he wished it to be profoundly agi-
tated ; he wished to destroy all apathy where the
vital principles of the Constirution were so deeply
afifected. For he believed if the Constitution
were saved, it must be by the people.
Already a great deal of important business was
before the House ; business, and particularly that
which respected the internal revenues, that claim-
ed an early attention. We were told the people
felt anxious for a repeal of those taxes ; that they
begin to think we are not sincere. It was there-
fore high time to take that subject up and decide
it He could mention many other interesting
points that claimed an earlv attention.
Mr. RuTLsnoB said he nad seconded the mo-
tion of postponement without intending to have
troubled the House on it. But he was called up
by the cry on the left for the question. Such a
mode of procedure may comport with the system
of gentlemen who are prepared on all occasions
how to vote ; but it was a course to him novel,
and, he would say, to the nation extraordinary.
He had hoped that on a question of such import-
ance— on asubject infinitely more important than
any ever before discussed within those wall»—
511
HISTORY OF CONGRESS.
512
H. OP R.
Judiciary System.
February, 1802.
gentlemen would have honored the supporters of
this motion with their reasons against it. Gen-
tlemen may make light of this business, but the
time will come, and shortly too, when they will
feel the subject to be of importance. The people
are thinking, deeply thinking, on it. Before he
took his seat in that House, he did not hear that
such a measure was contemplated ; he did not be-
lieve that even in this wild season of innovation,
so bold a measure would be attempted ; the people
had no idea of it until taken up in the Senate ;
and what was the effect? The moment they saw
their rights affected they came forward with me-
morials against it. The respectable bar of Phila-
delphia had memorialized against it. The Legis-
lature of Pennsylvania were of a different opinion.
To collect the public opinion, we ask the indul-
gence of a short time; no reasons are urged
against our request; but the question is called for,
and we are to be put down by the vote of a ma-
jority, by a silent vote. He begged gentlemen to
overlooit us, and to look at the nation. On former
occasions gentlemen talked much of the people.
On this occasion, when we wish a development
of the public mind, they say no ; and the question
is called for. Are gentlemen for acting as on a
former occasion ? Do they think the minority
have no rights ? We had been told from high au-
thority, that a minority has rights, has equal rights.
He begged to know the meaning of the declara-
tion ; he supposed it meant we should have the
right of debating.
If gentlemen are determined to have a silent
vote^ we shall deem it our duty to express our
sentiments fully. They cannot expect a vote to-
day or to-morrow. The subject is too important
to be dismissed on a hasty consideration. If, then,
the subject is of such a nature as necessarily to
consume time, will not other important measures
be neglected ? The gentleman who had made the
motion for going into a Committee of the Whole,
had himseli complained of the tardiness of the
Committee of Ways and Means. Will not the
discussion of this question, of such vast moment,
still longer prevent the House from getting at the
business confided to that Committee? whereas, if
that be taken up now, it may be despatched in a
short time.
Mr. QiLES said he felt every degree of respect
for the gentlemen, and he was persuaded they
must be sensible that as far as gentlemen on his
side of the House had gone they had treated them
in a manner particularly respectful. He was still
under the same impression, which alone induced
him to oppose the motion for a postponement.
When this bill came from the Senate, some gen-
tlemen were for taking it up at an early day. This
was alleged to be unexpected ; a comparison of
opinions took place, and the time for considera-
tion was fixed, and, as he supposed, satisfactorily ;
this was the tenth day since the bill came from
the Senate. Some gentlemen then thought three
days sufficient for consideration ; but ten days were
asked, and granted. He then thought^and he still
thought, the indulgence granted sufficient. It was
true ne had not replied to the remarks of the gen-
tleman from Delaware, because he did not think
a reply necessary, and that from a sentiment of
respect to the whole House, whom he thought
fully competent without any remark from him
to decide whether they were then prepared to en-
ter upon the discussion, after the subject had laid
over for ten days. Yet we are told we are pre-
cipitating the business. He believed the indul-
gence granted was as great as was usual ; and it
will be found that the time now given is greater
than that allowed the opponents of the bill when
it passed. He referred to the Journals to prove
that there was not then that forbearance that gen-
tlemen now recommend.
Gentlemen seem to apprehend that this subject
will be treated as one other has been, by a silent
]l^ote. Mr. G. hoped the House would' proceed on
it with calmness, dignity, and reflection. He
viewed it as an all-important question, and from
a respect to himself, to those associated with him,
and to the nation, he would endeavor to present
the most correct view he could take of it. And
permit me to say, said Mr. G., that when subjects
occur that require discussion in this House they
will be discussed. But gentlemen go too far when
they expect us to enter upon a discussion of propo-
sitions that require no examination. Such propo-
sitions had been made, when gentlemen requested
information already in the possession of the House.
But gentlemen say this subject is recent ; they
had heard no mention of it before they took their
seats in the House. Surely those gentlemen are
not much in the habit of reading newspapers, or
they would have seen that since March, 1800, it
had occupied more of the public attention than
any other subject. There was another circum-
stance that proved this step was not so unexpected
as gentlemen say it is. Appointments had been
niade to the new offices under the system of in
dividuals, who held places under the old, and who,
from an expectation that this law would be re-
pealed, had refused to accept them.
Gentlemen say they wish to agitate the public
mind. I have no doubt they wish to agitate iu
But I have no doubt, too, of their entire incom-
petency to raise alarm, because they are on the
wrong side of the question. I have said that 1
wish to discuss this subject with calmness. This
is still my wish. I wish to take it up free from
all partiality or prejudice, and to examine it on its
intrinsic merits. But it is not to be inferred from
this that we fear the impression of the public sen-
timent on our side. I believe that sentiment is
with us. A great majority of the Legislature of
Pennsylvania has declared for a repeal of the law.
North Carolina had instructed its Senators to the
same effect before this discussion. Yet gentle-
men say the subject had not been thought of,
though two States had declared themselves in
favor of the repeal, and Maryland had decided in-
directly to the same effect. From these consider-
ations, I should think it proper to delay the dis-
cussion no longer. I hope gentlemen will there-
fore agree to take up the subject, and enter upon
an examination of it, not with a view to triumph,
but to truth. If, after we have progressed, em-
613
HISTORY OF CONGRESS.
514
Ferrdary, 180S.
Judiciary System.
H. OF R.
i
barrassment should occur, or information be want-
ed, we can have no objection to a postponement.
Mr. Griswold. — We ask for a postponement
of this question, and gentlemen answer us, the day
for discussion is fixed — it is the order of the day
for this day. If this answer is sufficient in this
case it is sufficient in every other. Do we not
make bills the order for a certain day, but do we
scarcely ever take them up on that day? Why,
then, deviate from our ordinary rules? Are there
not strong reasons for a postponement? First,
much other business requires to be despatched.
It is not contemplated that this law shall go into
operation till the first of July. While therefore
this is not, others are pressing. Why, then, take
up this, and postpone them? Besides, is not the
subject of vast importance — of more importance
than any which ever came before this House ?
Why, then, deny time ? Will not the discussion
deeply involve the feelings? Are there not many
honorable gentlemen who think that, by passing
this bill, the Constitution is prostrated forever?
Can gentlemen, after that, go on calmly discuss-
ing other business ? Are not gentlemen then wil-
ling to postpone this question for the purpose of
passing upon other subjects that involve no Con-
stitutional question ? Then, if they please, they
can bring forward this bill, which, it was fearea,
would be the last act of the session.
Mr. Davis. — No gentleman on this floor would
ay more respect to public opinion than I would,
(ut I know the difficulty we experience here in
ascertaining that sentiment. When in Philadel-
phia, where it was certainly more easy to acquire
It, we had received memorials from ten thousand
citizens, and this was called public opinion ; but
when the elections came on we found it was in-
correct. I know no better way of ascertaining
the public opinion than throus^h gentlemen who
represent the several districts of the country. For
my part, I know the sentiments of the State I
represent. I know it to be in favor of the repeal.
But gentlemen beg for more time before we adopt
so bold a measure. To my knowledge so much
time was not allowed when this law was carried.
They require time for consideration. I presume
that they who have passed the law have already
considered it. Are gentlemen ready to say they
passed it without consideration? We are told
this is a bold measure. Permit me to say the
passing the bill, and the mode of passing it, was a
still bolder .measure. Attempts were made to
amend. But no ; not a word was sufiered to be
added, though the bill was allowed to be defective.
The honorahle gentleman from Delaware wishes
us to wait for an expression of the public opinion,
and yet he tells us he will vote at last from the
dictates of his own mind; from which I must in-
fer that be the public opinion what it may, he
-will not listen to it.
Mr. RuTLEDGE was sorry eentlemen referred to
newspapers for what was to oe done here. They
ask whether I have not seen this measure pro-
posed in the newspapers? Yes; I have seen it
proposed there. But I did not suppose that the
wild projects of newspapers for prostrating the
7th Con.— 17
judiciary, for robbing the Senate of the treaty-
making power, and other projects, were to be ef-
fected by us.
They say, too, as an evidence that this measure
was expected, that district judges appointed under
this law refused their new appointments through
the fear of being driven from their seats by its
repeal. But I will tell gentlemen that as to two
of these judges, and I know of no other, the fact
is not so. In the case of the judge of South Car-
olina, I know it it is not so, from personal knowl-
edge, and from good authority I know it not to he
so in the case of the district judfe of North Car-
olina. As to the instructions oi North Carolina.
I believe they were drawn from the attention oi
Congress being excited to the subject by the Presi-
dent.
Grentlemen say the law, now proposed to be re-
pealed, was itself passed precipitately. But after
It was proposed two sessions passed, at the end of
one of which it was nublished for consideration,
and taken home by the members, before it was
finally enacted.
Mr. R. Williams said the resolutions of North
Carolina passed on the 17th of December, and the
communication of the President was made on the
6th of December. He was therefore warranted
in saying the communication of the Executive
had no effect on this measure.
If the business is so all important as gentlemen
say, ought we not immediately to enter upon its
discussion ? But I never expected to hear such a
warning in this House. Are we to be told that
we are not only to dread the effects of the repeal
of this law upon the nation, but that business can-
not be transacted afterwards in this House? I
disregard such threats, and I will say, with the
gentleman from Delaware, that I will proceed, and
pursue the dictates of my own mind.
Mr. Dennis spoke in favor of the postponement
to the same effect with the preceding speakers. In
alluding to the act of the State otMaryland he
said he did not know how it had become fash-
ionable to consider the sentiments of the Legisla-
ture as synonymous with those of the.people. He
did not believe the opinion of the people m favor
of the repeal. In the district he represented, their
opinion was decidedly against it.
The gentleman from Kentucky says we had a
full opportunity of investigating this question
when the bill passed. But it is necessary to say
that the Constitutional question involved in the
repeal could not be involved in passing the law.
Mr. Bayard. — I am bound to acknowledge my
gratitude to the gentleman from Virginia for the
respect he entertains for us, and in return I beg
leave to tender him the homage of my high re-
spect.
Gentlemen say we have been accommodated
with a postponement according to our wishes, and
that they had not expected any delay after this
accommodation. I confess this was my expecta-
tion at the time. But this error arose from the
bill then on our table being blank as to the time
of its taking effect. I did not then know that its
operation was not to take effect till the 1st of July.
515
HISTORY OF CONGRESS.
516
H. OP R.
Judiciary System.
February, 1802.
Mr. B. did not believe the subject was in a state
of maturaiioD for decision. It was declared the
new courts had no business — that the old ones
were sufficient. But on what was this declara-
tion founded ? On Presidential information, in
which several errors had been pointed out^ and
which was very incorrect. Besides, he believed
the President had no right to obtain this informa-
tion in the mode he had used, and the clerks of
the courts were not bound to comply with the re-
quest of the Secretary of State. From his own
personal knowledge, he knew the document to be
incorrect, as far as related to his district, in which
no chancery suits werestated to have been broueht,
whereas he had been engaged in several. This
was an additional reason for further delay to get
more accurate information.
Mr. Hemphill had always thought it was a rule
in deliberative bodies, when a single member asked
time for information to ^rant it, when no other
business would be deranged by it. Besides, he felt
himself in a peculiar situation. The Legislature
of Pennsylvania was about instructing its repre-
sentatives to vote for a repeal of the law of the
last session. If the reasons they assigned should
be satisfactory to him, he should vote for a repeal.
He wished time to consider them.
Mr. Smilie said he believed the minds of the
members were not to be made up by the talking
of sentlemen, though they may think we stand in
need of their instruction. At one circumstance
he could not help expressing great ples^sure. The
Eeople are now of some consequence. How often
ad he heard in that House the terms "sovereign
people," pronounced with a sneer. But he thanked
God the people were now acknowledged to be of
some consequence. He had always thought the
public opinion should be attended to, and if he
thought that opinion against the repeal, he would
not vote for it.
It was said the respectable bar of Pennsylvania
had petitioned against the repeal, and great weight
was attached to their sentiments. But who are
these characters ? Are they disinterested? Were
they not lawyers, and did tliey not know the more
courts the more business ? But in opposition to
their interested opinions were to be placed the
sentiments of the Legislature of Pennsylvania,
declared by a great maiority of both Houses.
Mr. EusTis having been for the postponement
imtil this day, could not sit silent under the im-
putation of precipitancy. The recollection of
every gentleman must convince him of the ex-
treme candor and fairness of the majority of the
House. The gentleman from Delaware, when
this business was first brought up, had asked for a
postponement, and had said that if postponed to
this day, he would be prepared to enter upon the
discussion. He had been indulged in his request.
This then is not our, but their measure ; not our
day, but their day. He must say the indulgence
had proceeded from a very honorable and accom-
modating disposition, that called for a different
return from that side.
Whatever was the ultimate disposition of the
business, on which he felt not very solicitous, he
thouffht it his duty to state these circumstances.
Gentlemen, too. must see that this iQOtion is per-
fectly fruitless, for whatever might he the real
question before the House, the merits of the main
question were sure to be discussed.
Mr. GonnARn was sorry any charge of precipi-
tancy had been made. Yet he thought there
were weighty circumstances that recommended
a postponement. He had wished for a reference
to a select committee, that should fully examine
the subject. But this was refused. He now
wished to avoid the Constitutional question. Gen-
tlemen seem to think the Constitutional question
thebnly one on which we can vote. He saw not
this. Gentlemen will not surely, to establish a
Constitutional question, repeal a law that is use-
ful. He wished, then, to avoid the necessity of
giving a legislative construction to the Constitu-
tion, as he feared deciding a question that will ^o
greater lengths than gentlemen are aware of. He
would wait for an expression of the public will
whether the law was promotive of national good.
If it appeared that it was, they might be willing
to avoid the Constitutional question. They might
agree to bury the hatchet as to that question, a
decision of which may extremely agitate the pub-
lic mind.
Gentlemen say we are afraid to meet the Con-
stitutional question. I am, said Mr. G., afraid to
meet it. It may perhaps be owing to the weak-
ness of my nerves; but I feel as if I should be
brought by it into a very unpleasant situation.
Not because I hare not made up my mind on the
constitutionality of it, but from other motive.
Mr. Griswold said he should uot have again
troubled the House, but for the remarks of the
gentleman from Massachusetts, who had said this
IS our day; but certainly he had mistaken the
transaction. When the bill came from the Sen-
ate, we asked for a reference to a select committee
to elude the Constitutional question. This was
negatived. We then asked for delay. An early
day was named. The gentleman from Kentucky
had the generosity to name this day. it is not
then our day, but their day.
The gentleman from Pennsylvania, alluding to
the memorial from the bar of Philadelphia, says
they are mere lawyers, interested in what they
pray for. But he would say thai bar was eleva-
ted too hiffh to be affected by anything that coold
fall from tne gentleman from Pennsylvania. Their
interest was directly the reverse of that ascribed
to them. The fewer the courts the greater the
delay, and the greater delay the more the biu:i-
ness.
Mr. S. Smtth said he had now little hopes that
the discussion of the main question would com-
mence to-day, which was already too far gone to
expect it. Still he hoped the motion of postpone-
ment would not prevail, so that the House might
be prepared to enter upon the sulgect to-morrow.
He agreed with the gentleman from Massachu-
setts that this was emphatically their day. True
it was, the gentleman from Kentucky had named
it ; but had not the gentleman from Delaware got
up and solicited for this day, and declared that, if
517
HISTOI^Y OF CONGRESS.
518
Februaby, 1802.
Judiciary System.
H. OP R.
the indulgence were granted, he would feel it a
duty to be prepared to go on with the subject with
calmness, dignity, and deliberation 1
I came to the House, therefore, said Mr. S., with
this expectation, and I fully expected that gentle-
man would open the discussion. I came prepared
to listen to him. Why ? Because this i^ a sub-
ject on which I want information ; and being one
m which I could take but little share, I wished to
profit by the ideas of ingenious gentlemen who
may discuss it. Gentlemen now say they want
information. Thence the necessity of commen-
cing that discussion which is to give them inform-
ation. They say they wish to remove all preju-
dices. Why not, then, openly and boldly eradi-
cate them? The gentleman from Delaware had
told us he would obey the public will ; and he
adds, if the bill passed it will prostrate the Con-
stitution. Will he, then, if the public will shall
appear to be for a repeal, vote for it ? I am in-
clined to think the gentleman went further than
he intended when he made this declaration. The
information gentlemen say they want can have
no effect upon those who have made up their
minds upon the Constitutional question, for I can-
not believe they would violate their oaths to con-
form to the public will. Is it to operate upon us ?
No ; for we are ready to act — to say we have
heard the public voice, and are prepared to obey it.
Mr. HoLLANn spoke against the postponement.
After assigning his reasons at some length, he
proceeded: — Why, th«n, wait? For the single
reason offered by the gentleman from Connecti-
cut, viz: his wanting to avoid the Constitutional
question ; did he not mean by this to delay, to
embarrass, and perhaps defeat the bill ? Qive me
leave to say^ said Mr. H., I do want to meet it,
and to get rid of it, that we may proceed to other
business.
Mr. Dana. — The gentleman from North Caro-
lina need not to have told us he meant not to
compliment us. We might have learned that
from his conversation. But I wish to know what
authorizes him to make these charges ? My col-
league has said he did not wish to meet the Con-
stitutional question. But has he said be meant to
procrastinate, to embarrass, to defeat it ? Is that
fentleman so much in the habit of expediting
uslness as to be authorized to make these char-
ges? I acknowledge that my mind recoils at the
decision of the Constitutional question, because I
deprecate the result, if decided in one way. My
mmd recoils, because it goes to shake the founda-
tions of society ; because it shakes questions that
I thought were fixed, and which were not to be
discussed; because if decided one way, we shall
be sent back to the first principles of society. The
gentleman cannot tell why we are for delay. The
gentleman from Massachusetts is a scholar. He
may appreciate my remarks, if others cannot. We
want information — that information which flows
from books — he, having enriched his mind with
the stores of knowledge, knows its value. Can
any man show me a library, public or private,
where I can get this information ? We labor here
under peculiar disadvantages. But it is probable
that ^ntlemen, after representing their civility to
us, will at last vote us down.
Mr. GonnABu explained what he had previous-
ly said.
Mr. Bayabu. — It is my misfortune to be perpet-
ually misunderstood by the gentleman from Mary-
lana. I am at a loss to know how gentlemen on
this side are more misunderstood by him than
any other member. Is it that his anxiety to an-
swer us induces him to state fallacies in order that
he may refute them? He says, I stated that I
would come perfectly prepared to-day. I did not
say we would come forward to discuss the subject.
The same gentleman charged me with saying I
would instruct the House. This is impossilue.
It might be compatible with the character of that
gentleman, but I never could say so.
The gentleman has also charged me with say-
ing I would vote for the repeal, if the public will
was for it. I said not so. I did say the Constitu-
tion was the property of the people; that the ma-
jority had a right to construe it as they pleased ;
and that I would obey their construction, that is,
I would bow to what appeared manifestly the
sense of the majority. The gentleman from Mas-
sachusetts had said tnis is our day. Perhaps, it is
emphatically our day — perhaps our last day. I
have no dount gentlemen would be gratified if it
were our last day.
The fact is. wnen an unprecedented precipita-
tion was attempted. I agreed to this day, because
I could not expect a longer day would be granted.
It was, however, as much a forced day. as any
other day could have been. As to the remarks of
the gentleman from Pennsylvania, it was painful
for stranarers to be obliged to defend the friends of
that gentleman from reflection. But I will say to
that gentleman there was no ground of fact to
justify his aspersion. He bad charged his politi-
cal friends with having apostatized — with having
renounced their party — with having violated their
political faith.
Mr. Smilib said he had said no such thing.
Mr. Bayabd was ^lad the gentleman knew
what he did say, which was an unusual thing.
I understood him to say they acted from interest-
ed motives. I drew the inference. If governed
by interest, I ask whether they are not apostates:
whether they have not renounced their political
creed ? Could anything be more base, on a ques-
tion involving Constitutional grounds, than to be
governed by motives the most wretched and con-
temptible ?
The question of postponement was then taken
by yeas and nays; which were — yeas 35, nays 61,
as follows:
YxAS — James A. Bayard, Thomas Boude, Manasseh
Cutler, Samuel W. Dana, John Davenport, John Den-
nis, Abiel Fo8t6r, Calvin Goddard, Roger Griswold,
William Barry Grove, Seth Hastings, Joseph Hemp-
hill, Archibald Henderson, William H. Hill, Benjamm
Huger, Thomas Lowndes, Ebenezer Mattoon, Lewis
R. Morris, Thomas Morris, Joseph Pierce, Thomas
Plater, Nathan Read, John Rutledge» William Shep-
ard, John C. Smith, John Stanley, Benjamin Tall-
madge, Samuel Tenney, Thomas Tillinghaat, George
HISTORY OF CONGRESS.
H. OF R.
Judiciary System.
FEBRDitRY, 11
B. Upham, Killinn K. Van RensBetacr, Pe\eg WrJh-
worth, Benjamin Walker, Lemuel Williams, and Hen-
ry WockIb.
Natk — ^Willis Alston, John Archer, John Bacon,
■rheodoru« Bailey, PhanucI Bishop, Rirhard Brent,
Robert Brown, William Butler Samuel J. Cabell,
ThoniBB Claiborne, Matthew Clay, John Cioplon, John
ConJit, Richard Culta, Thomai T. Davin, John Daw-
son, WiUiam Dickson, Lucas Elmendorf, Ebenezer
Elmer, William Euetia, John Fowlet, WiUiam B.
Giles, Edwin Gray, Andrew Gregg, John A. Hanna,
Daniel Heiatisr, Joseph Heister. Williaio Helma, Wil-
liam Hogo, Jamea Holland, David Holmes, George
Jackson, Charles Johmion, Williatn Jonea, Michael
Leib, John Milledge, Samuel L. Mitchill, Thomae
Moore. James Motl. Anthony New, Thomas Newton,
jr., Joseph H. Nicholson, John Randolph, jr., John
Bmilie, Israel Smith, John Smith, of New York, John
Smith, ofVirginia, Josiah Smith, Samuel Smith, Henrj
I , 1 Southard, Richard Stanford, Joseph Stanton, jr„ John
I I Taliaferro, jr., David Thomas, Pbilip R. Thompson,
i ' 1 AbramTrigg,JohnTrigg,PhiUpVanCortlandt,Juseph
B. Vamum. Isaac Van Home, and Robert Williams.
Motion to adjourn. Lost — yeas 37.
Mr. Dennis moved a postponement till Mon-
Mr. Randolph. — I will state as briefly as pos-
sible the motives which iaflueaee me to be against
the postponement moved by the gentleman from
Maryland. I am sensible liis motives for a post-
ponement may be pure. I believe they are pure.
Bat when I compare the reasons of the friends of
the postponement, and find them so various and
irreconcilable, I can discover no reason for grati-
fying their request. One acDllemansays he wants
information of the state of the public will. Aootb-
er K^nileman says it is a great Coostiiuiional
question, and whatever may be the public opinion.
he must vote from the dictates of his own judg-
ment. Another gentleman wishes to understand
the resolutions of the Legislature of Pennsyl-
■ Tania, by whii h he may perhaps be governed.
Another gentleman says the Iegi^lative vote is no
indication of the public mind. Gentlemen say
their reasons are cogent; but I beg ihem Eo tell
me on which of their various and contradictory
reasons they mean to vote for a paslponement —
reasons so irreconcilable that if one was correct
the others must be false.
I should not have risen now, but from seeing
the day nearly gone, and from being prepared for
a reiteration of motions that will consume the
whole of it.
Other reasons are urged. We are told (he great
Consiitutioaal question may be evaded. Wben I
aayso. I do not mean to impute lo gentlemen any
dis^ition to embarrass the discussion, but a dis-
position to shrink from a question which they
say will give a stab to the Coastilution. Believ-
ing as they do, 1 think the fear an honorable fear.
Bui thinking differently myself, it becomes me lo
speak differently. It becomes me to declare that
tnis is a ^reat Constitutional question that ought
(o be decided, and decided soon. It ought not to
be left till the public mind shall be acted upon itt-
cotrectly — till some twenty or thirty years hence
it ahall be operated upon by war, by intrigue, or
by improper excitement. Whenlaeeall (hei
gerous motives, such as war without and irei
within, which too frequenily operate, and c
pare the state of the country under their influe
with its present situation, entirely free from tt
I say this is ihc period for decision, For dec
it must be. I feel for gentlemen, whose coi
disposition it is to shrink from a question wl
result must be adverse to them. 1 have bee
the same situation. I, like Ihem, have shi
from some questions. Bui did they wail for
till their power was taken from them? Ace
ing to this course, no decision can take place
that which conforms to the fears of a minorit
I recollect an eloquent member of this Hi
from Massachusetts having deprecated indeci
as the worst of all decisions. The saying
paradojical, but the doctrine was sound. Ij
the Constitution settled, that it may be do lor
afloat. I wish the nation to settle it, that all
ther discussion may be removed. I wish to ki
whether the Judiciary is a co-ordinate or a p
mount department of Government.
We have heard much oo the points of coi
tutionaliiy and eipediency. All these consi
ations belong in strictness to that state when
bill shall be taken up, and not to that stale w
the only question is, shall (he bill be taken
considerationl But as gentlemen have reiter
their objections on the point of expediency,
in supporting those objections have taken <
one ground, I hope I shall be indulged in sta
that the very reasons of the gentlemen on
ground would govern me in making a diffe
decision, The;y tell us thai bv the bill we
pose lo repeal justice is brought home to c
man's door. But the House will please to n
led that we are not to decide whether ju:
shall be brought home to every man's door ;
is not the exclusive legislature to which this i
belongs. It belongs to the States, and I will
if Ihey do not periorm their duty, (his House i
not assume the performance ot^ it. The Coi
tution never intended it. and this bill does not
complish It ; because while the large Stales, ui
the StategovernmeQts. are subdivided into twi
districts, this law only divides them into i
Nor is it necessary under our law that there shi
be this subdivision, because the Federal amhi
of the courts does not exlend to cases betv
man and man. or to those ordinary cases tba
quire that justice should be brought to the do<
every citizen. So long as Federal courts e
lo which there may be an appeal or removal
long as the States are prevented from emit
Biper currencies; so long as one part of
nion is prohibited from cheating its neighb
so long as the foreigner has an impartial tribi
lo appeal to, ihe Constitution is satisfied. Th
is for which the Constitution was made, and
which makes the gentleman from Connect
vote against the repeal of this act, makes me
' "" * with other motives
for opposing Ihe mot
The question of repeal is a great Coosliintii
question, and we must settle it. It is a ques
521
HISTORY OF CONGRESS.
522
February. 1802.
Judiciary System*
H. OF R.
that will be agitated so long as we remain a na-
tion, until it shall be decided, and this is the only
tribunal before which it can be decided.
Mr. Dennis rose to explain what he said about
the will of the people bein^ evinced in the votes
of their Legislature. He did not say that this was
altogether to be disregarded, but he bad some rea-
son to believe that in the State of Maryland, the
people did generally approve of the act in debate
which passed that State. What criterion of the
public will was the votes of a State on a particu-
lar question about which, at the time of election,
the candidate was not questioned as to his opinion ?
None. When this Legislature was elected, Mr.
D. did not suppose there was a citizen of Maryland
who supposed this question would have been agi-
tated. How often were Congress told that the
Alien and Sedition bills were contrary lo the will
of the j?reat majority of the people ot the United
States f and yet those bills were passed. A good
proof that it was not then the opinion of the gen-
tlemen that the Legislative acts were criterions of
the public will.
Mr. Nicholson had no doubt but a majority of
the people of Maryland would approve of this re-
pealing law. What evidence could his colleague
(^Mr. Dennis) have to the contrary ? He believed
that the gentleman spoke the truth when be said
that the people would not approve of it in the dis-
trict he represented, but that could by no means
be a criterion by which to judge ot the whole
State : that was yet to be tried. In a Government
like ours, depenaing u|>on the popular will for its
support, it were to 1^ wished that this popular will
could be accurately collected on every important
question, previous to the discussion of the Legisla-
ture. If it could be. he would be willing to modify
his vote by that will. From present impressions,
he had no doubt but the popular will would ope-
rate in favor of the bill under consideration, and
against the new system. He knew of no way to
•obtain that will better than it could be known by
the representatives immediately from the people ;
and even waiting till March would not evince that
will with more accuracy than it was now known,
although even 50,000 people should petition the
Legislature. He referred to a period in the British
history when a petition from 80,000 people was
presented to Parliament agaiosta certain measure,
and yet it was said not to be the popular will. If
they could by any means obtain the popular will,
Mr. N. declared himself willing to sit here six.
eight, or ten months to await it; but as they coula
not, the responsibility must rest on the persons who
gave their votes. He was perfectly willing that the
public eye should observe his conduct, uninformed
as it appears to some gentlemen to be.
The question was then taken by yeas and nays,
4ind the motion of postponement lost — yeas 34,
nays 58.
Ybas — James A. Bayard, Thomas Boude, Manaaaeh
Cutler, Samuel W. Dana, John Davenport, John Den-
nis, Abiel Foster, Calyin Goddard, Roger Griswold,
William Barry Grove, Seth Hastings, Joseph Hemphill,
Archibald Henderson, William H. Hill, Benjamin Hu-
ger, Thomas Lowndes, Ebenezer Mattoon, Lewis R. |
Morris, Thomas Morris, Joseph Pierce, Thomas Plater,
Nathan Read, John Rutledge, William Shepard, John
C. Smith, John Stanley, Benjamin Tallmadge, Samuel
Tenney, Thomas TiUinghast, KiUian K. Van Rensse-
laer, Peleg Wadsworth, Benjamin Walker, Lemuel
Williams, and Henry Woods.
Nats — Willis Alston, John Archer, John Bacon,
Theodorus Bailey, Phanuel Bishop, Robert Brown,
William Butler, Samuel J. Cabell, Thomas Claiborne,
Matthew Clay, John Clopton, John Condit, Richard
Cutte, Thomas T. Davis, John Dawson, William Dick-
son, Lucas Ehnendorf, Ebenezer Elmer, William Eustis,
John Fowler, William B. Giles, Edwin Gray, Andrew
^regg, John A. Hanna, Daniel Heister, Joseph Heister,
William Helms, William Hoge, James Holland, David
Holmes, George Jackson, William Jones, Michael Leib,
John Milledge, Samuel L. Mitchill, Thomas Moore,
James Mott, Anthony New, Thomas Newton, jr., Joe.
H. Nicholson, John Randolph, jr., John Smilie, John
Smith, of New York, Josiah Smith, Samuel Smith,
Heniy Southard, Richard Stanford, Joseph SUnton, jr.,
John Taliaferro, jr., David Thomas, Philip R. Thomp-
son, Abram Trigg, John Trigg, Philip Van Cortlandt,
John P. Van Ness, Joseph B. Vamum, Isaac Van Home,
and Robert Williams.
Mr. Giles moved that the House resolve itself
into a Committee of the Whol?.
Mr. Rutledge moved an adjournment. Lost,
yeas 38, nays 44.
Mr. Giles's motion was then agreed to, and the
House went into a Committee ofthe Whole, Mr.
J. C. Smith in the Chair.
The Committee then rose, and asked leave to
sit again.
Tuesday, February 16.
A representation of sundry merchants and tra-
ders or the city of Philadelphia, in the State of
Pennsylvania, was presented to the House and
read, praying that an act of Congress, passed on
the thirteenth of February, one thousand eight hun-
dred and onej entitled *'An act to provide for the
more convenient organization of the Courts ofthe
United States," may be continued in force; or that,
if it shall be deemed expedient by Congress to re-
peal the provision of the said act in relation to the
general establishment of the courts therein men-
tioned, the said repeal may not extend to the courts
ofthe third circuit of the United States, for the
reasons specified in the said representation.
Also, a memorial of the Corporation of the
Chamber of Commerce of the City of New York,
praying that this House will not pass into a law
a bill sent from the Senate, and now depending
before the House, entitled "An act to repeal cer-
tain acts respecting the organization of the Courts
ofthe United Stales, and for other purposes.*'
Ordered^ That the said representation and me-
morials be referred to the Committee of the whole
House to whom was committed, on the fourth in-
stant, the bill from the Senate last mentioned.
The House resumed the consideration of the
amendment reported on the fourth instant, from the
Committee of the whole House, to the bill for the
relief of Daniel W. Coxe and others ; and, hav-
HISTORY OF CONGRESS.
Febrdary, ISC
ioff made a farther progress ihereio, ihe farther con-
aideration was posipoaed till ro-morrow.
JUDICIARY SYSTEM.
The House then went into Comraiiiee of the
Whole on the Judiciary bill from ihe Senate.
Mr. Hendbhbon.— I should not rise to offer tny
opinion on the great question before the Com-
mittee were I not placed in a siluation different
from tnal in which I have been since I have had
the honor of a seal in this House, The Ledsla-
ture of the Slate of North Carolina, one of whose
TepresentBiives I am on this floor, have seen
proper to inslrucl iheir Senators and lo recom-
mend to their Representatives in Congress, to use
their exertions to procure a repeal of the law pass-
ed the last session of Congress, for the more con-
naient organization of the Courts of the United
Stateii, and the bill on your table has for its ob-
ject the repeal of this law, and as I shall probably
vote against its passage, a decent respect for the
opinions of those who have framed and sent for-
ward those resolutions, demand that I should gi»e
the reasons which influence my conduct.
And here, sir. 1 cannot forbear lamenting ei-
Iremely that I shoold unfortunately be placed in
a situation where the highest obligations of duly
compel me to act in opposition to the wishes of
that community to which 1 immediately belong.
It is certainly of great importance that, as public
functionaries, we should not only discharge those
trusts oommiited to us with fidelity, and for the
general good, but in such a manner as to give sat-
isfaclion to those for whom we are acting.
And if I know the feelings of my own heart, I
declare that, neit to the consciousness of having
performed my duty with uprightness, my highest
Mtisfaction is the knowledge that in the discharge
of this duly I meet the approbation of my fellow-
a. But, sir, if ibis approbation i^ only to be
lined by the unconditionai surrender of ray
lersiandiDg, and the violation of my oaib, I
le I shall be eicuaed if I do not make Ibis sa-
ice at the altar of public opinion. Indeed, sir,
■e I disposed to forego my own opinion, and
pt that of the Legislature of my own Stale —
'e I inclined to say, thy will be done, and not
le, [ should first demand of ibem an absolution
0 the oath which I have taken lo support the
istitutioa of the United States. As long as
t oath Is binding on nie, I sec an insuperable
pction to my acting in conformity to their
will further rei
prised that that
taken to decide
jre them, withi
ring the argum
self for
Dted in a want
lent the Slate
i yet, if that co
procedure do i
es to the mind,
hope, sir, it will
nark, sir, that I am not a little
lugust body should have un-
ut having an opportunity of
!nl3 which may be used here,
I will not permit
3 belie
}the
of confidence io those who re-
1 the people in iliis Assembly,
idence eiists, the reasons foi
t immediately present them-
Ot be understood that I mean
to cast the most distant shade of disra^^peci on tl
body. I feel loo great a. respect for toe Le^is
lure of my native Slate to be guilty of such
attempt. No doubt but that they were influeac
by the purest and most correct undersianding-
does not follow, by any means, that because i
weak and feeble mind cannot discover perf
propriety in the conduct of men, that therefore
does not exist.
Having premised thus much, Mr. Cbairmaa
will proceed to an eiamiuation of the questi
under coosideraiion. It has been usual to div
it into two parts : first, the expediency ; and, $
ondly, the authority of Congrera to pass the 1;
on the table. This is a natural and correct di
sioa ; but I shall invert the order of conslderi
the question, and first examine our power to a
before we consider the expediency uf acting. A
if, after a calm and candid review of the Cons
tution, it should be found that we are prohibit
from passing the bill, there will be no neces»
for inquiring into the expediency of repealing t
law passed at the last session of Congress fur <
ganizing our cuurts of justice. The relative n
riis of tne old and new Judiciary system will
entirely out of view. For I am confident tl
there is not a member of this body who woi
wish to pass the bill on your table:, if in doing
we must violate the sacred charter under whi
we are now assembled.
The people of America have obtained and
tablished thai the powers of Government shall
vested in three great departmenls: the Legis
live, the Executive, and the Judicial. They ba
said that there shall be a House of Represen
lives, the members of which shall be chosen
the people of the several Slates every seco
year. Though this House is composed of me
bers chosen by the people immediately ; thou
they can have no other interest than the gn
community from which they were sent; thou
they must return to the common mass in the sh<
period of two yearsj yelenlightened Americai
not see proper to entrust the power of maki
laws to tliis body alone ; they knew that the h
lory of man, and the experience of a^es, bore t
timony against the safely of commitimglhis hi
power to any one Assembly not checked by a
other body. They have therefore erected anoti
branch of the Legislature, called the Senate, t
members of which are not to be elected by 1
people immediately, but by the sovereiguiies
the several Slates; they are to be chosen for :
years, and not for two; and the qualtficatii
requii^ite to entitle those lo a seal is differ*
from that of a member of this House. To ih.
bodies are given the power of initialing all Ian
but after a bill has passed both of these Hous
before it becomes of binding obligation on the i
lion, it must be approved of by the President;
is a dead letter, until life is given by the Eiei
live. The President Is elected not by the peof
not by the Legislatures of the seveivl Stales, i
by either House of Congress, but by Ekctorsct
sen by the people. He is to bold his office duri
four years. This is the second great departmt
525
HISTORY OF CONGRESS.
526
Febrcart, 1802.
Judiciary System.
H. opR.
of the Gk>vernmeDt. It will be easily discovered
from this carsory view of our Constitution, the
caution and jealousy with which the people have
conferred the power of making laws, ot command-
ing what is right, and prohibiting what is wron^.
But, sir, after this law was made, after its authori-
tative mandate was acknowledged by the nation,
it became necessary to establish some tribunal to
judge of the extent and obligation of this law.
The people did not see proper to entrust this power
of judging of the meaninff of their laws, either to
the Legislative or to the Executive, because they
participated in the making of these laws ; and ex-
perience had shown that it is essential for the pre-
servation of liberty that the Judicial and Legisla-
tive authorities should be kept separate and dis-
tinct. They therefore enacted a third depart-
ment, called the Judicial, and said that " the Judi-
' cial power of the United States shall be vested in
' one Supreme Court, and in such inferior courts
' as Congress ma]^ from time to time ordain and
' establish. The judges both of the Supreme and
' inferior courts shall hold their offices during good
* behaviour, and shall at stated times receive for
* their services a compensation which shall not be
' diminished during their continuance in office."
It is admitted, I understand, by all parties, by
every description of persons, that these words,
'^ shall hold tneir offices during good behaviour,"
are intended as a limitation of power. The ques-
tion is, what power is thns to be limited and
checked? I answer, that all and every power
Tvhich would hare had the authority ot impair-
ing the tenure by which the judges hold their
offices, (if these words were not inserted,) is
checked and limited by these words; whether
that power should be found to reside in Congress,
or in the Executive. These words are broad and
extensive in their signification, and can only be
satisfied by being construed to control the Legis-
lative as well as the Executive power. But gen-
tlemen contend that they must be confined to lim-
iting the power of the President. I ask gentle-
men, what is there in the Constitution to prove
their signification to this end alone ? When vou
erect a court and fill it with a judge, and tell nim
in plain, simple language, that he shall hold his
office during good behaviour, or as long as he shall
behave well ; what, I beseech you, sir, will any
man. whose mind is not bewildered in the mazes of
modern metaphysics, infer from the declaration ?
Certainly that the office will not be taken from
him until he misbehaves ; nor that he will be
taken from the office during his good behaviour.
Under this impression he enters upon his duty,
performing it with the most perfect satisfaction
to all persons who have business before him ; and
the Legislature, without whispering a complaint,
abolishes the office and thereby turns out the
judge. The judge is told this is no violation of
the compact; although you have behaved well,
although we have promised that as long as you
did behave well you should continue in office,
yet, there is now no further necessity for your ser-
vices, and you may retire. These words, " during
good behaviour," are intended to prevent the Presi-
dent from dismissing you from office, and not the
Legislature from destroying your office. Do you
suppose, sir, that there is a man of common un-
derstanding in the nation, whose mind is not alive
to the influence of party spirit, that would yield
his assent to this reasonmg 1 I hope and believe
there is not. But. sir, how is it proved that the
President would have had the power of removing
the judges from their office, if these words, '^du-
riog good behaviour," had not been inserted in the
Constitution ? Is there any words in that instru-
ment which gives the President expressly the
power of removing any officer at pleasure ? If
there are, 1 call upon gentlemen to point them
out ; it does not result from the fashionable axiom,
that the power which can create can destroy. The
President can nominate, but he can appoint to
office only by the advice and consent of the Sen-
ate. Therefore, it would follow, if the power of
displacing results from that of creating, that the
Senate should participate in displacing as well as
creating officers. But however this may be. it is
certainly a mere constructive power which he
has exercised, because the Legislature have, from
motives of expediency, acknowledged that he had
it. If the Constitution does not necessarily give
the President the right of removing officers at
pleasure, and if that right depend upon Legisla-
tive acts or constructions, where would have been
the necessity for inserting these emphatic words
.as a check and limitation of Executive power,
where without them the President has no such
power ? You are taking ^reat pAiQs to control a
power which does not exist. The persons who
framed our Constitution knew that a power of
removal in ordinary cases must exist somewhere*
They took care, therefore, that in whatever hands
it might fall, the language of the Constitution
respecting the tenure of the office of a judge
should be co-extensive with the whole power of
removal, whether it should reside in one or in
more hands.
But, sir, these words, " during good behaviour."
are familiar to the American people. When tKe
political bands which united us with Great Brit<»
ain were burst asunder, and we assumed among
the nations of the earth an independent station,
most, if not all the States introduced these words
into their constitutions. They were deemed es-
sential, and a meaning has been stamped upon
them which it is not in the power of this House
to change. Let us for a moment examine some of
the State constitutions, and see what significa-*
tion must of necessity be given to these words.
I will first advert to the Constitution of North
Carolina, as beijig one with which I am best ac-
quainted. In that instrument it is said. ^' that the
^ General Assembly shall, by point ballot of both
^ Houses, appoint judges of the supreme court of
^ law and equity, judges of admiralty, and an at-
' torney-general, who shall be commissioned by the
^ Governor, and hold their offices during ^ood be*
' haviour." I ask gentlemen what power is intended
hereto be limited and checked by the words " shall
hold their offices during good l)ehaviour ?" Not
the Executive, for it is well known that the Gov-
.527
HISTORY OF CONGRESS.
528
H. OP R.
Judiciary System.
February, 1802.
ernor of that State cannot appoint even a consta-
ble. It could not be the meaning of that consti-
tution to check his power of removal, for that of
appointment is not anywhere given to him. Then
these words must mean, that the Leg^islature should
not have the power of removing the judges from
office as long as they behaved well. It you do
not give this signification to the words, they are
of no importance, and might as well have been
left out ot the instrument. I hope the feelings of
the people of North Carolina will not be hurt, and
their understandings insulted, by telling us that
the meaning of the words may be satisfied by con-
struing them to extend to a prohibition of the Le-
gislature displacing the judges,and proceeding to
the election of others, without those displaced
being guilty of misbehaviour. If this is correct,
what security, sir, have the people then for the
independence of their judges ? The Constitution
has told them that they should be judged by men
who, during the time they behaved well, should
continue in office, or what is the same thing, should
hold them during good behaviour. But they are
now informed that this was intended to operate
as a check upon the Lp^islature's displacing them
by selecting others to fill their offices when they
had not misbehaved, but not to prevent their pass-
ing a law repealing that act by which the appoint-
ment to office was made ; or in other words, our
Assembly are expressly forbidden to impair the
tenure by which our judges hold their offices, as
long as they behave well ; but they can repeal the
law, ^nd the judges are out of office, though they
may be the most virtuous, upright, and able men
in the country, and have discharged their duties
faithfully. Are the gentlemen on this floor from
North Carolina prepared to give this construction
to that constitution 1 Are they prepared to tell
their constituents that the provisions of their con-
stitution may be thus evaded, and the whole power
of Gk>vernment, Legislative, Executive and Judi-
cial, be concentrated in the General Assembly,
and absolute despotism imposed upon them ? If
they are not, I conjure them to pause before they
give their vote for the passage of the bill on the
table. I will further observe, Mr. Chairman, that
words of the same import with those I have quo-
ted from the Co istitution of North Carolina, are
to be found in the Virginia and South Carolina
constitutions, in neither of which States hath the
Governor the right of appointing judges.
In Virginia, sir, the judges of the supreme court,
in 1792, declared that the Assembly of that State
had not the power of imposing chancery duties
on the district judge, and in delivering their opin-
ions descanted at large on the independence of the
judiciary, and said that the Assembly could not
annihilate the office of a judge, which was secured
to him by the constitution. If this is a true expo-
sition of the constitution of that State, I ask gen-
tlemen by what authority they now attempt to
impose a difierent meaning on the same words,
when found in the Constitution of the United
States? Are we to suppose that the whole people
of America were less regardful for their rights,
less solicitous for independent judges, than the
people of a particular State? And unless this is
conceded, the doctrine of gentlemen who advocate
the passage of this bill muit be incorrecL
But it has been said that the powers of each
Congress are equal, and that a subsequent Le^-
lature can repeal the acts of a former; and as this
law was passed by the last Congress, we have the
same power to repeal it which they had to enact
it. This objection is more plausible than solid.
It is not contended by us that legislatures who are
not limited in their powers have not the same au-
thority. The question is not what omnipotent
Assemblies can do, but what we can do under a
Constitution defining and limiting with accuracy
the extent and boundaries of our authority. The
very section in the Constitution (sec. third, an.
first) which I have read, is a proof against the
power of every Congress to repeal the acts of their
predecessors. In the latter part of the eighth sec-
tion it is proposed that the judges shall receive for
their services a compensation which shall not be
diminished during their continuance in office; and
yet the salary was ascertained and fixed by a for-
mer Congress. The same observations may be
made witn respect to compensation for the Presi-
dent, which can neither be increased nor diminish-
ed during the period for which he shall have been
elected. It is not competent for this Congress to
vary the compensation to him which has been
fixed by a prior Legislature. It is clearly seen,
upon a little investigation, that the position which
gentlemen take is too extensive, and leads imme-
diately to a destruction of the Constitution. It
does away all check, and makes the Legislature
omnipotent. It has been asked, that if a corrupt
and unprincipled Congress should make an army
of iudees, have not a subsequent Congress the
right of repealing the law establishing tnis mon-
strous iudicial system? I answer that they have
not; the same mode of reasoning which attempts
to prove this right from an abuse of power will
also prove that you may lessen the compensa-
tion of your judges. May not equal oppression be
imposed upon the people by giving your judges ex-
orbitant salaries as by increasing their numbers?
May not the same corrupt and unprincipled mo-
tive which would lead men to the raising of an
army of judges lead them to squander the public
money? And may they not, instead of giving
their judges two thousand dollars a year, ^ive
them two hundred thousand? And yet, sir, if it
were to take place, I know of no authority under
the Constitution to le;»sen that exorbitant compen-
sation. The Government of our country is predi-
cated upon a reasonable confidence in those who
administer our public affairs. They must have
the power of acting for the public welfare, and
this would never have been given them if the pos-
sible abuse of this power were a sufficient reason
for withholding it.
I will take the liberty of observing further, that
this part of the Constitution, which forbids les-
sening the compensation to the judges during
their continuance in office, furnishes a strong ar-
gument that it was the intention of the people to
place their judges out of the control of the Legis-
529
HISTORY OF CONGRESS.
530
February, 1802.
JudiciaTy System,
H.ofR.
lature as long as they behaved well ; that they
did mean to render them independent of the Legis-
lature to a certain extent, is obvious, inasmuch as
they inhibit the power of reducing their salaries.
For it is evident, that if they could take from
them their compensation, they might drive them
from office, and the consequence would have been,
that our judges would have felt all the depend-
ence which results from a consciousness that ano-
ther body has the power of diminishing their com-
forts. I ask gentlemen if the framers of this Con-
stitution intended to give Congress the power of
abolishing the office of a judge, by repealing the
law whicn created the office, and thereby displace
the judge, where could have been the propriety
of forbidding his salary to be diminished during
his continuance in office ?
Is it possible to suppose that they were more
anxious to secure that independence which re-
sults from permanency of compensation, than that
which results from permanency of the office it-
self? That they should have been altogether re-
s^ardless of the power which Conc^ress was to
nave over the office, but limit with the utmost
strictness their power of diminishing the salary,
when the office itself, upon which the salary de-
Eends, was to be at the mercy of Congress ? I
elieve that such folly cannot, with justice, be at-
tributed to those great men wno gave existence to
this instrument.
Again, sir, the construction which gentlemen on
the other side of the House contend for, tends to
the concentration of Legislative and Executive
powers in the same hands. If Congress, who have
the power of making laws, can also diaplace their
judges by repealing that which creates the offices
they fill, the irresistible consequence is, that what-
ever law is passed the judges must carry into ex-
ecution, or tney will be turned out of office. It
is of little importance to the j>eople of this coun-
try whether Congress sit in judgment upon their
laws themselves, or whether they sit in judgment
upon those who are appointed for that purpose. It
amounts to the same despotism ) they in fact
judge the extent and obligations of their own
statutes by having those in their power who are
placed on the sacred seat of iustice. Whatever
the Legislature declares to be law must be obeyed.
The Constitutional check which the judges were
to be on the Legislature is completely done away.
They may pass ex post facto laws, bills of attain-
der, suspend the writ of habeas corpus in time of
peace, and the judge who dares to question their
authority is to be hurled from his seat. All the
ramparts which the Constitution has erected
around the liberties of the people, are prostrated
at one blow by the passage of this law. The
monstrous and unheard of doctrine which has
been lately advanced, that the judges have not
the right of declaring unconstitutional laws void,
will be put into practice by the adoption of this
measure. New offences may be created by law.
Associations and combinations may be declared
treason, and the affrighted and appalled citizen
may in vain seek refuge in the independence of
your courts. In vain may he hold out the Con-
stitution and deny the authority of Congress to
pass a law of such undefined signification, and
call upon the judges to protect him ; he will be
told that the opinion of Congress now is, that we
have no right to judge of their authority ; this will
be the consequence of concentrating Judicial and
Legislative power in the same hands. It is the
very definition of tyranny, and wherever you find
it, tne people are slaves, whether they call their
Government a Monarchy, Republic, or Democ-
racy.
Mr. Chairman, 1 see. or think I see, in this at-
tempt, that spirit of innovation which has pros-
trated before it a great part of the old world — ev-
ery institution which the wisdom and experience
of ages had reared up for the benefit of man. A
spirit which has rode in the whirlwind and di-
rected the storm, to the destruction of the fairest
portion of Europe; which has swept before it ev-
ery vestige of law, religion, morality, and rational
government; which has brought twenty millions
uf people at the feet of one, and compelled them
to seek refuge from their complicated miseries in
the calm of despotism. It is against the influence
of this tremendous spirit that I wish to raise my
voice, and exert my powers, weak and feeble as
they are. I fear, sir, on the seventh of December,
it made its appearance within these walls, clothed
in a gigantic body, impatient for action. I fear it
has already begun to exert its all-devouring ener-
gy. Have you a judiciary system extending over
this immense country, matured by the wisdom of
your ablest and best men ? It must be destroyed.
Have you taxes which have been laid since the
commencement of the Government? And is the
irritation consequent upon the laying of taxes
worn off? Are they paid exclusively by the weal-
thy and the luxurious part of the community?
And are they pledged for the payment of the pub-
lic debt ? They must be abohshed. Have you a
Mint establishment, which is not only essentially
necessary to protect the country against the influx of
base foreign metals, but is a splendid attribute of
sovereignty ? It must be abolished. Have you
laws which require foreigners commg to your
country to go through a probationary state^ by
which their habits, their morals, and propensities
may be known, before they are admitted to all
the' rights of native Americans ? They must be
repealed, and our shores crowded with the out-
casts of society, lest oppressed humanity then
should find no asylum on this globe !
Mr. Chairman, if the doctrine contended for by
gentlemen on the other side of the House should
become the settled construction of the Constitution,
and enlightened America acquiesce with that con-
struction,! declare for myself, and for myself alone,
I would not heave a sigh nor shed a tear over its
total desolation. The wound you are about to
give it will be mortal ; it may languish out a mis-
erable existence for a few years, but it will surely
die. It will neither serve to protect its friends
nor defend itself from the omnipotant energies of
its enemies. Better at once to bury it with all our
hopes.
Mr. R. Williams said he could not believe it
531
HISTORY OF CONGRESS.
532
H. opR.
Jvdiciary System,
February. 1802.
necessary in the discussion of this question, which
he acknowledged to be importaut, to reply to the
remarks of his colleague on the danger of a
destruction of the Constitution, if this bill passed ;
nor could he believe there existed any analogy be-
tween our situation and that of countries in a rev-
olutionary state. Nor could he see the connex-
ion between this subject and a repeal of the inter-
nal taxes, diminution of the army, or the abolition
of the Mint. He should^ therefore, take the liberty
of placing all these considerations aside, as having
no real relation to the subject.
My colleague has commenced his remarks with
deploring that the Legislature of North Carolina
should give instructions on a subject on which they
cannot possess so much necessary information as
is required for a correct decision. In this regret
he could not agree with his colleague. He believed
they had all the information requisite for a correct
judgment. If this subject is so all-important, if it
involves a great constitutional question, how can
we presume the Legislature of a State wnich must
be deeply interested in it, to be ignorant of its me-
rits ? How will the doctrine of the gentleman,
which attaches so much i mportance to the petitions
on your table, apply ? Will he pretend to say the
Legislature of that State is less informed than
citizens who occupy but a small section of the
country?
In considering this question, his colleague had
gone on the ground of constitutionality. In his
arguments he has formed a chain of reasoning
merely on the abuse of power. He would agree
with him that it was impossible to devise any sys-
tem of Gk)vernment from which effects may not
follow that shall be pernicious. But is this any
good reason against giving effect to a reasonable
construction ? Is it iair to say, because the Le-
gislature hav^e the power of abolishing the office
of a judge, that therefore they willturn every judge
out of office 1 This was to suppose that we were
lost as to the principle of Government, and ripe
for a revolution.
That there must be some place where the true
meaning of the Constitution must be determined,
all would agree. Where then is it? In what de-
partment ? The people have constituted two de-
partments of authority, the Executive and Legis-
lative, emanating directly from the people ; and
have directed them to form another, further remo-
ved from the people. Are we then io be told there
is more safety in confiding this important power
to the last department, so far removed from the
people, than in departments flowing directly from
the people, responsible to and returning at short
intervals into tne mass of the people ?
Agreeably to our Constitution a judge may be
impeached. But if the doctrine contended for on
the opposite side prevails, hoW is this salutary
part of the Constitution to operate? Suppose a
law to pass, prescribing any duties to a judge; he
is to decide whether it is constitutional or not ; if
he has this right, however he may err, he com-
mits no crime; how, then, can he be impeached?
But my colleague says this is turning the judges
out of their offices. But I do not see it m this
point of view. I believe the natural consequence
of our construction is, that the judge shall hold
the office while it exists, and so long as he be-
haves well, independent of any Legislative or Ex-
ecutive control.
But the appointment of a judge is said to form
a contract. Between it and a contract I can see
no analogy. There must be two parties to a con-
tract. I will ask. whether a judge is to be consid-
ered as a party at the time when the law passed,
before there are any courts established, and which
are only contemplated to be established ?
Again : for whose interest were these offices
created ? Not for the interest of the iodividQal
officers, but the people. If, then, the passage of
the law sprang from a regard to the interest and
convenience of the people, ought not its continu-
ance to depend upon the same interest and conve-
nience?
To make the jud^e independent in the tenure
of his office, while it remains, and to protect his
salary from diminution is sufficient; and it is
making him as independent as judges ever have
been in the country to which gentlemen are so apt
to refer for whatever is worthy of imitation. In
England, the Judiciary is said to form the strong-
est pillar of the Government, and the greatest
security of the people; and yet are they inde-
pendent of the Legislature? Are they not easilr
removable on the address of the two Houses, while
here they can only be removed on the conviction
of a crime?
If this doctrine is to extend to the length gen-
tlemen contend, then is the sovereignty of the
Government to be swallowed up in the vortex of
the Judiciary. Whatever the other departments
of the GKjvernment may do, they can undo. Yon
may pass a law, but they can annul it. Will not
the people be astonishea to hear that their laws
depend upon the will of the judges, who are
themselves independent of all law ?
My colleague has made use of an expression
made before, but which I hoped would not have
been repeated in this House. He says the judges
were intended to guard the people from iheir
worst of enemies — from themselves. Are the
people to be told that they are so lost to a sense of
their own interests, so ignorant and regardless of
them, that they must taKe fifteen or twenty men
to guard them from themselves? Is it possible
that any man can attempt to make the people be-
lieve they are themselves their greatest enemies ?
I will agree that there are times when checks
and balances are useful. Legislative bodies may
occasionally, in a gust of passion, pass improper
laws ; but because in a solitary instance we mar
pass such laws, shall we pass all autl^ority into
the hands of a few men, who, gentlemen say, know
none of these passions, who are calm, cool, and
wise men, who know no interests of their own. but
are totally absorbed in that of the people ? Sup-
pose in our construction we should err, the evil
can last no longer than two, at most six years.
which are the durations of our office. The peo-
ple will then dismiss us. But how can the jud?e
be checked, or the evil he commits be remedied ?
533
HISTORY OF CONGRESS.
534
February, 18Q2.
Judiciary System.
H. OP R.
In no way but by a recurrence to revolutionary
principles.
But my colleague has read the Constitution of
North Carolina, which says that the judges shall
be chosen by the joint ballot of the two Houses,
and shall hold their offices during good behaviour!
And he says this limitation cannot extend to the
Executive, because the Executive has no agency
in the appointment. It must, therefore, he con-
tends, prohibit the Legislature from repealing the
laws which create the office of judge. But was
it not possible for the gentleman to conceive that
the Legislature might, were it not for the Consti-
tution, have said a jud|;e shall be removed, and
passed a law to that efiect? Without this Con-
stitutional provision, what would prohibit the
Legislature from sweeping off all their judges,
and voting in new ones ?
After making these remarks on the constitu-
tionality of the measure, I will ask what prefer-
ence this law, which it is now proposed to repeal,
has over the previous system ? Does it pay more
regard to the convenience of the people? I believe
that under it only four States are divided ; in all
the others, the districts remain as before; and
suitors, witnesses, and jurors, have to attend at the
same place, under all the inconveniences they
before experienced ; with this difference, that the
jurisdiction of the federal courts is brought down
to four hundred instead of five hundred dollars.
If I believed, with my colleague, that a repeal
of this law would give a death-blow to the Con-
stitution, I would be the last man to vote for it.
But believing, as I do, on the contrary, that the
doctrine now contended for would destroy the
vital principle of the Constitution, by submitting
the entire sovereignty of the nation to judiciary
control, and that the onlv way of resisting this
doctrine is to repeal the law, I vote most cheer-
fully for its repeal.
Mr. Hemphill said he would claim the atten-
tion of the Committee a short time upon the im-
portant question now before them) that his task
-would principally be to arrange arguments which
he had already ^eard or seen.
He would say but verv little as to the expedi-
ency of passing the bill on the table; he would
not go into a minute comparison of the two ju-
d icial systems ; but should content himself with sub-
mitting a few general observations. The alleged
inutility of the law passed the 13th of February,
1801, rested principally upon document No. 8.
which accompanied the President's Message.
Xhat document contains a list of all suits at com-
nion law, suits in chancery, criminal prosecu-
tions, and admiralty causes, which have been
commenced in any of the federal courts in the
United Slates, from May, 1790, to April, 1801. It
appears that within the time included, eight thou-
sand two hundred and seventy-six causes have
been instituted, and of that number one thousand
five hundred and thirty-seven are now depending ;
in the enumeration the State of Maryland is omit-
ted, and probably, with the addition of causes in
that State, the aggregate number would be nine
thousand, and the causes now depending about
one thousand six hundred. With a list of one
thousand, six hundred causes undecided, and an
annual increase of seven or eight hundred, is it
possible, with no other assistance than would be
receivea from the district judges, that six men
could perform all this multiplicity of business in
its original and final stages, to be transacted at so
many different and distinct places, in a country
extending one thousand six hundred miles ; and
that the causes could be decided with that dis-
patch which the public good requires? What
every one would suppose to be the natural conse-
quence of buch a system, has been witnessed by
the gentlemen of the- bar in the eastern part of
Pennsylvania; who have deliberately and anx-
iously declared to you, that in their opinion a re-
newal of the late system would be attended with
^reat public inconvenience, and without advert-
ing to the casualties of weather or indisposition,
as inevitable consequences, were embarrassment,
uncertainty, and delay.
Sixteen judges were appointed at an expense
of thirty-two thousand dollars, three thousand
dollars of which will be saved on the first vacancy
in the Supreme Court; and when we are about
calculating the expense, we should deduct the sa-
vings which the new system will certainly make.
It must be acknowledged that many of the parties
and witnesses will not nave so far to attend court.
It must be acknowledged that the causes would
be sooner decided than under the old system ; the
unfinished business will rather increase than di-
minish. Omitting the admiralty causes, there will
be about one thousand five hundred undecided
causes remaining, and of course three thousand suit-
ors, and if only one witness to a cause, there will
be four thousand five, hundred people in motion,
attending courts. From the two causes which I
have mentioned, there will necessarily be a con-
siderable saving; some estimate might be made,
and this saving will in some measure be equal-
ized, as no person knows how soon he will be a
party or a witness. It is for the trifling difference
between this saving and the salaries of a few
judges, that the liberty of the people is to be en-
dangered; and, if I am not mistaken, a gentleman
from Virginia, (Mr. Giles,) when the apportion-
ment bill was before the House, declared that the
expense of the Civil List was a trifling thing, a
mere speck on the pages of expenditure, and that
it was the expeni^e of maintaining armies and
fleets that we should guard against.
The expense of the augmented representation
in this House will be nearly, if not quite, equal to
the salaries of the judges. I think I may with
great safety appeal to the people, and ask them
which expense will be most to their advantage?
Before I enter into the discussion of the main
?iuestion, I beg leave, Mr. Chairman, to make a
ew preliminary remarks. The first is, as to the
salaries of the judges of the district courts of
Kentucky and Tennessee, which were increased
by law, which must be acknowledged to be so far
Constitutional. Can you r^^l the law general-
ly, and thereby diminish the compensation of the
judges ? I do not mean to contend that the office
1
535
HISTORY OF CONGRESS.
536
H. OP R.
Judiciary System.
February, 1802
of a judge is to outlive the Constitution. Every
officer is removable by a change in that part of
the Constitution on which his office depends; if,
by any event, the Constitution should be entirely
dissolved, the officers will revert to the common
class, and the people must again begin to build up
a new government. It has been said that our
Constitution exhibits the absurdity of an office
without an officer ; qucLsi a judge, entitled to his
salary, without any duty to perform, and the
strange phenomenon of an officer not amenable to
your laws, to your Constitution, or to the people.
These observations amount to nothing ; they are
taking that as data which is the only thing to be
proven ; for the sole question is, can an omce be
taken away from a judge? I think no person will
seriously contend that the framers of the Consti-
tution ever intended that a man should be entitled
to his salary, when he is not in the possession of
his office; indeed, the words in the Constitution
do not embrace the extent of the proposition; the
words are, '* during his continuance in office."
In regard to the main question, Mr. Chairman,
I will in the first place read the ninth and tenth
amendments to the Constitution :
" 9. The enumeration, in the Constitution of certain
rights, shall not be construed to deny or disparage
others, retained by the people.
" 10. The powers not delegated to the United States,
by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people."
The Question is between the United States and
their rulers. In behalf of the people it is contend-
ed, that the power you are about to exercise does
not belong to you, out that it was reserved to the
people at the formation of jthe Constitution ; the
rulers say no, the power belongs to us, and we can
and will exercise it. whenever we deem it expedi-
ent. I submit to tne consideration of this honor-
able Committee, if in such a case there should be
a reasonable doubt, whether it will not be most
delicate and safe to let that doubt operate in favor
of the people. We are not here, sir, clothed with
the full power of the American people; we are here
in a circumscribed sphere, exercising a limited
power. The people are the original fountain of
all power ; we only possess a part of their power.
Bearing constantly this view of the subject in our
minds, many questions put may be readily answer-
ed. As when it is asked, is the creature greater
than its God? Cannot ne who makes destroy?
Has not one Legislature as much power as an-
other? As to the two first, the idea is correct,
when applied to the original power; it is correct
or incorrect when applied to a limited power, ac-
cording to the words and meaning of the instru-
ment giving that power; the instrument giving
power to Congress, has inhibited the power which
has a riffht to create, from destroying, as in the
case of the salary of the President, and the com-
pensation of the judges; the President and Senate
also have the power to appoint judges, but not to
r,emove them, and th^ question is, does not the in-
strument giving power to Congress restrain them
from taking away the office ofa judge, as in the
above mstance, giving a power to create and noi
to destroy? As to the question, has not one Leg-
islature as much power as another ? I answer yes ;
both deriving their power from the same instru-
ment must be precisely the same; but this pro7e>
nothing till it is shown that any Legislature can
take away the office of a judge. Many other ideas
advanced on this subject are predicated upon the
supposed abuse of power, and strike at the very
existence of written constitutions, and tend toshoT
the impracticability of being governed under them.
Suppose one Legislature was to create a million
of judges, who is to correct the evil? Is it possi-
ble, it is asked, that another Legislature snoald
not have power instantly to correct the shamefol
abuse of the people's right? Suppose, on the other
hand, that a Legislature^ previous to the President's
election, should raise his salary to a million a year,
will it be con tended that the next Legislature, agree-
ably to the Constitution, could decrease the salary ?
It will not ; and why not have the power in one
case as well as in the other? There are many
cases under our Constitution, where the people rao
the risk of the abuse of power, and have retained
the power of correction in their own hands: and
what is the plain remedy for an evil in the present
case, if it snould exist? If the number of your
judfi^es is a little too great, declare that vacancies
shall not be filled; if they become corrupted, im-
peach them; if, by any uncommon event in the
circumstances of the country, or the wickedness of
the Legislature, the number should be extravagant-
ly great and useless, put them down by changing
tnat part of the Constitution. And this, sir. is not
a monstrously difficult thing, We have already
had amendments to the Constitution, when the
emergency was not so sreat. If an evil should
grow out of any part of the Constitution, it can
ea^ly be removed by the hands of the people con-
stitutionally raised ; the judges are secure and not
within the reach of a raging party, yet they must
always remain within the reach of tne cool refiec-
tion of the nation ; and if the people will not agree
to make this change, it will be a proof that the
evil does not exist, and the great order of things
ought not to be changed for mere imaginary com-
plaints.
If Congress, in coming here, and carrying with
them the sentiments of the people, ana as their
immediate representatives, can do everything
which may appear to them for the good of the
people, unaer every change of circumstances, a
written Constitution would be useless. Upon this
principle the Senate is unnecessary. The gen-
tleman from North Carolina (Mr. Henderson)
has properly dilated upon this view of the sub-
ject. Our Constitution is founded on differem
principles, and such ideas ought not to govern in
putting a construction on it. The people have
retained power to themselves, and have said to the
Legislature, thus far shall you go and no farther.
There are certain cases wherein you shall not be
the judges of what will or will not be for our ad-
vantage. We have fixed the principle, and have
taken the responsibility upon ourselves — on this
reserved ground you are not to walk. One of the
537
HISTORY OF CONGRESS.
538
February, 1803.
Judiciary System.
H. OF R.
great and leading principles agreed upon by the
people, we contend, was the independence of the
judges. They calculated that the great good
flowing from this principle would far outweigh
any apprehension of the abuse of this power in
giving birth to too many or improper judges. If,
Mr. Chairman, I have perfectly comprehended the
arguments of our opponents, they all converge to
one or other of two points : 1st. That the words
in the Constitution refer exclusively to the Ex-
ecutive, and are meant to render the judges inde-
pendent of him only ; the second pomt, which is
rather a subordinate one, operating in support of
the first, is that the office of judge is created by
law, and not by the Constitution ; that it is a crea-
ture of the law, whose life and death is to proceed
from the same hand. I will proceed to examine
these two points, giving my nearty assent to the
acknowledgment of our opponents, that it is dan-
gerous to the liberties ot the people to legislate
upon constructive power.
As to the first point, I would ask on what part
of the Constitution is this opinion founded 1 where
is it so expressed ? If there had been an express
provision that the Executive might remove offi-
cers at pleasure, there would be some weight in
the argument, though far from being conclusive,
that this clause was intended to prevent him from
exercising a power in re^rd to the judges, which
he was allowed to exercise as to all other officers.
When nothing of this appears on the face of the
Constitution, how can you infer it, for the pur-
pose of making one implication assist you in mak-
mg another? You make ^ords, which are gen-
eral, apply to a part ; by implication, you say that
the power that has a right to create has a right to
destroy, if not prohibited. By this rule the Ex-
ecutive can remove all officers of his own appoint-
ment. By the same rule of implication, Congress
can abolish all officers of their own creating, if
there is no restriction. In this way the Execu-
tive and Congress have each of them the office in
their power ; the Executive can remove the man.
Congress can remove the office, then comes in a
general clause of the restriction, including both
the man and the office, and to whom is it to re-
fer ? If words are the signs of ideas^ to both most
inevitably; and, besides, as a proof^ that it does
not refer exclusively to the Executive, he is not
named in the section ; yet Congress are named,
and acts to be done by Congress run all through
it. In the first section of the third article, it is
declared that ^' a judee shall hold his office during
good behaviour." The office is an object of Le-
fislative creation, and the thin^ thus to be created
y the Legislature the judge is to hold for a cer-
tain time. If the object is to prevent the Execu-
tive from taking away the officer, leaving the
office, a correct expression of that intention would
have been, that the judges shall not be removed
from office; and these words are used intheafiirm-
ative, when the officer and the office are to be sep-
arated, and the office left. [Here Mr. Hemphill
read from the Constitution third section first arti-
cle, No. 7, 1st section second article, No. 6, and
fourth sectioD second article.] But when the of- 1
fice and the officer are inseparable for a certain
.time, different words are used. The President
shall hold his office during the term of four years;
the judge shall hold his office during good beha-
viour. The tenure of office in each case is in-
cluded in the same words.
As to the other point, that it is an office created
by law, and not by the Constitution, and therefore
may be removed by a law, let this principle be
tested by the Constitution itself, and not from any-
thing out of it. I aver, that in every instance
where the Constitution has spoken of the contin-
uance of any one thing, although the creation of
the particular object is optional with Congress,
yet tne moment they give it existence it is out of
their power^ and must continue during the time
mentioned in the Constitution. Apply this prin-
ciple first to the salary of the Executive and
judges. The salaries are created by law, and
when created, their continuance is fixed by the
Constitution. Apply the principle to the mem-
bers of this House. When the bill fixing the
ratio of representation was before us, could we
have fixed a ratio decreasing the present number
of representatives, and have made the law take
effect immediately, and thereby disqualified mem-
bers now on the floor from taking their seats next
session, when they had been elected for two years ?
Yet their right to seats here was created by a law
which was discretionary as to the number. Ap-
ply the principle to the Senators. New States
may be admitted by Congress into the Union ;
yet when the new States shall have been admit-
ted, and two Senators chosen in consequence of
the laWp can Congress repeal the law, dismember
the Union in part, and turn out the Senators'?
The right of citizenship also is acquired by a law ;
yet when strangers have become members of our
nation, in virtue of a law, can Congress repeal that
law, and thereby disfranchise a part of her citi-
zens ? Yet in both of these cases it might be said
that they were the throes of a dying Administra-
tion to provide for its friends. The law abo fix-
ing the permanent seat of Government, agreeably
to the Constitution, seems to afford an analogous
case, and I question if it could be repealed, unless
words mean anything, and then Congress can do
anything.
To come to a right understanding of the Con-
stitution, it will be necessary to inquire what was
the generally received opinion about the time the
Constitution was adopted. I have ever under*
stood that there was no difference of opinion on
this point ; that the general opinion was, that the
words in the Constitution rendered the judges in-
dependent of both the other branches ol the Gk)v-
ernment. This appears from the debates in the
Convention in Virginia to have been their opin-
ion ; it appears, also, from the strongest implica-
tion, to have been the opinion of the author of the
Notes on Virginia. If we can receire no aid from
any of these sources^ we must take up the Consti-
tution, and apply to it the general rules for the in-
terpretation ot solemn instruments of writing. If
in this instrument we find one express and positive
provision, it must have its full force, unless we
539
HISTORY OF CONGRESS.
540
H. OF R.
Judiciary System,
Febrdary, 1802.
find another provision equally positive, and so in-
consistent, that one or the other must give way^
In the Constitution we find these words : " The
* judges, both of the supreme and inferior courts,
' shall hold their offices during good behaviour,*'
without any other condition or qualification; take
these words detached from any other part of the
Constitution, and I ask, do they not contain an
express and positive provision ? If so, what part
of the Constitution is so inconsistent as to change
the nature of this provision from a positive into a
conditional one, and, in substance, to add these
words, viz: ^* on this condition, that Congress per-
mit the office so long to remain." It is said, in
the eighth section of the first article, that '*Con-
* gress shall have power to constitute tribunals in-
* ferior to the Supreme Court." This power was
necessary to be given, otherwise the tribunals
could not have been constituted, and when con-
stituted, the duration of the office is limited in
another part of the Constitution ; and any im-
plied power therein contained cannot be inconsist-
ent with an express provision ; for a mere impli-
cation is never to take preference to a positive
provision. . The other words relied upon are con-
tained in the first section of the tnird article.
What is the meaning of the words, /rom time to
time? They are used but in three parts of the
Constitution, and when used they do not convey
the idea of undoing 'what may be done. Indeed,
they are used in cases where it is impracticable to
undo what shall have been done. [Mr. H. here
read the fifth section, first article, No. 3; ninth
section, first article, No. 6; and the third section,
second article.] What do these words mean in
that part of the Constitution under this discus-
sion ? The Supreme Court had been mentioned
in the second and third article; the Supreme
Court, which implies that there should be but one.
They were not used to give Congress power to
constitute inferior courts, for that power had been
previously given, and if the inferior courts, to-
gether with the offices of the judges, are, as is
contended, subjects of ordinary legislation, those
words were unnecessary to enlarge the power of
Congress on them, for on all subjects of ordinary
legislation, Congress hare an unquestionable right
to enact and repeal at pleasure. It is not said in
the eighth section, first article, that Congress shall
have power to borrow money from time to time,
to regulate commerce from time to time, or to
establish post offices and post roads from time to
time; yet nobody doubts that Congress have a
right to make and repeal laws on these subjects,
when it may appear expedient; and the same
power would have, extended to the clause giving
power to constitute inferior tribunals, if there had
been no restriction in any other part of the Con-
stitution. As these words are unnecessary to give
the power contended for, they must have some
other meaning. The plain meaning is this : that
these words, together with the first part of the
section, were not used to give a power to consti-
tute courts, for that power had oeen previously
given ; they were merely introduced (o dispose of
le Judiciary power, and to declare where it
should reside. " The Judiciary power of the United
States shall be vested in the Supreme Court, and
in such inferior courts as the Con^ss may from
time to time ordain and establish , meaning the
power before given, which was discretionary as to
number; the clause in the eighth section of the
first article is brought here into view, and in the
very next sentence the offices are positively Aitd
and limited. Here, then, is an express and posi-
tive provision, uncontradicted by any express dec-
laration, or by any violent implication. It is said
that there are words of negation used as to the
compensation of the judges, and why not to the
offices? If the words had been: and shall zi
stated times receive for their services a compen-
sation during their continuance in office — will any
man in his senses say that the compensation could
be taken away during that continuance ? Yet
although the compensation could not be taken
away, it might be lessened, and the words of ne-
gation were to prevent that diminution ; but as
the legal signification of an office could not be
lessened, the words there would have been sur-
plusage.
But, Mr. Chairman, is it probable that the fra-
mers of the Constitution ever intended to invest
Congress with a power to destroy the (^ce of a
jud^e, in a rising country like this, where all the
various sources of litigation are daily increasing?
They foresaw that new judges would be wanwi
from time to time, but they never could have pic-
tured to themselves a necessity of dbpensing with
the old judges. If we were framing a Constita-
tion this moment, if we had any regard for the
independence of the judges, would we invest
Congress with a power to remove them, or take
away the offices ? We could calculate with rea-
sonable certainty, that if there should at any time
be a necessity for their appointment, there would
always in this country be a necessity for their
continuance ; and we could trust this power to
one Legislature as confidently as to another. U
the framers of the Constitution could have enter-
tained any suspicion that a Legislature^ in ISOl.
would have created useless judges for party pur-
poses, with equal propriety they might have sup-
posed that a Legislature, in 1802, would destroy
useful judges for party purposes. But the inde-
pendence of the Judicial department was the ob-
ject. This was the invaluable principle, and not
more liable to abuse than the other principles fixed
by the Constitution, and there was no principle so
necessary to be settled as the independence of the
judges. If we are to argue from the abuse of
power, what is there to prevent Congress from
admitting into the Union more new States than
would be for the advantage of the nation ? The
late Administration, with the consent of the Le-
gislature of Massachusetts, might have erected
the province of Maine into fifteen or twenty
States. The fact is, if there is a necessity for a
new State, at the time of its admission into the
Union, the probability is, there will always be a ne
cessity. So, if there is a necessity of a judge at the
time of hisappointment, the probability is that there
will always be a necessity, and the Legislature
541
HISTORY OF CONGRESS.
542
February, 1802.
Judiciary Syatem.
H.OFR
giving birth to one or the other, are the Constitu-
tionaljudges of that oecessity, and no other Le-
gislature has a right to interfere. My opinion is,
that the framers of the Constitution intended that
the judges should be independent of both the
other branches of Government ; that they have
spoken plainly and unequirocally ; and that the
moment that the judge is appointed, the office is
ingrafted in, and becomes a part of the Constitu-
tion, and cannot be taken away without impair-
ing the Constitution itself.
With regard, Mr. Chairman, to the distinction
that is taken between the supreme and inferior
courts, for my own part I caonot see any force in
the argument. Any person of common candor
must acknowledge, when he reads the first section
and second section of the third articles that there
is as imperative an injunction to establish some
inferior courts, as there is to establish one supreme
court. It is said that the Supreme Court shall
have appellate jurisdiction, and of course there
must be inferior courts, from which the appeals
are to be made, and the duration of office in both
courts is contained in the same sentence and
-words ; and it is absurd to suppose that the fra-
mers of the Constitution affixed a double mean-
ing to these words. The reasons urged against
our construction, apply as well to the Supreme
Court as to the inferior courts. A dying Admin-
istration could provide for'its friends by incieasiog
the number of judges in the Supreme Court, with
as much facility as by creating inferior tribunals.
But, sir, if Congress have the power contended
for, there is not a jnd^e on the supreme beneh
who is not completely m their power. The Con-
stitution does not say how many judges there
shall be, so that you maj^ remove all but one, or
you may pass a law placing six new judges on the
bench, by the side of the present judges, wad then,
for the good of the people, conclude that twelve
judges are unnecessary, and repeal the law which
created the first six judges, and the imperative
-words in the Constitution will be compli^ with ;
the Supreme Court being always in existence. I
see nothin|; in the Constitution which prohibits
CoDgress from changing the name of an inferior
court, if by the same act the office with all that
appertains to it is some where preserved. And
that Congress have a right to transfer some of the
duties of the judges from one tribunal to another,
is clear and evident ; it is incident to the power
of constituting new tribunals; for when a new
court is created, some of the business which would
have been cognizable in the old court, must be
transferred to the new tribunal. It was this kind
of power that Congress exercised in passing the
law last session ; but they did not toucn the office,
w'hich consists in certain powers, jurisdiction, and
authority, conferred on a particular person, re-
quiring of him certain duties which may be exer-
cised in a court bearing a different name from that
of the judge. Under the old system the district
judges sat in the circuit courts, the supreme
judges sat in the circuit courts ; and under the old
system the district judges of Kentuckv and Ten-
nessee had the powers cognizable in a circuit court,
with some exceptions as to appeals and writs of
error; and the twenty-fourth section of the law of
February 13, 1801, which abolishes the two dis-
trict courts; transferred the Constitutional parts of
the offices, to wit: all the power, authority, and
jurisdiction of the said courts into the circuit
courts; and by the seventh section of the same law,
the district judges of Tennessee and Kentucky,
with a circuit judge, are to hold the circuit courts ;
and in the same .section it is expressly declared,
that when the offices of the district judges, in the
districts of Kentucky and Tennessee respectively,
shall become vacant, such vacancies shall be sup-
plied by the appointment of two additional circuit
judffes^ which appointments, of course, must be
made in the usual way. And in the third section
of the same law. Congress have virtually ac-
knowledged their want of power to take away
the office of a judge, and have provided, that after
the next vacancy in the Supreme Court, it shall
consist of five justices onl^. And as to the addi*
tional salaries of the district judges, tbey will be
presumed to be equal to the additional duties, un-
til a complaint is made, and then the fact must be
ascertained.
This law, then, Mr. Chairman, which expressly
recognises the judge, which expressly continues
his duties, and which expressly continues his sal*
ary, is likened to a law which destroys the office
of a judge, takes away his duty, takes awav
his salary, and leaves bis commission a blanE
piece of paper; and this is the rock on which
gentlemen stand, when they triumphantly ask,
were we the guardians of the Constitution when
the first law passed ?
Mr. Chairman, ingenuity has been exhausted
in contriving cases wherein it is said our con-
struction will not hold good. It is asked if, in the
case of a war, a whole State should be ceded, if
the offices of judges would remain 1 Certainly
not; but here the provision of the Constitntion
would not be complied with, the whole streng[th
of the nation would not be suifficient to protect it ;
yet it would be a case of necessity, calamity, or
war, which no Constitution can provide agamst;
and, in the case put, the most important part of
the Constitution would not be complied with,
which guaranties to each State in the Union a
Republican form of Qovernment; yet in that
event the people of the ceded State might become
the slaves of a tyrant.
But, Mr. Chairman, a doctrine new and dan*
gerous has be^n to unfold itself. It is said that
the Judiciary is a subordinate and not a co-ordi-
nate branch of the Grovernment, that the judges
have no right to declare a law to be unconstitu-
tional ; that no such power is given to that branch
in the Constitution. Why, sir, it is nowhere de
clared that Congress have a right to exercise their
judgment, or to consider the expediency of a
measure; the Judiciary, from the nature of their
institution, are to judge of the law and what is
the law. The Constitution is paramount and su-
preme. The judge is bound by oath to support it.
The Legislature have a right to exercise their
judgment as to the conatitutionality of a law on
543
HISTORY OF CONGRESS.
544
H. OF R.
Judiciary System,
February, 1802.
its passage ; but the Judiciary decide at last, and
their decision is final. This doctrine is admitted
in the debates of the Convention of Virginia — in
the case of Vanhorme, lessee, vs. Dorrance, Judge
Patterson has expressed the same opinion, when
he could have had no view to this question :
** I hold it to be a position equally clear and sound,
that in Buch a case, it will be the duty of the court to
adhere to the Constitution and to declare the act null
and void. It is an important principle, which, in the
discussion of questions of this kind, ought never to be
lost sight of, that the Judiciary in this country is not a
subordinate, but co-ordinate branch of the Grovem-
ment."
The Chief Magistrate of Pennsylvania has re-
cently expressed the same sentiment, and the cor*
rectness of his legal opinions will not be called in
?[uestion by any party; in assigning his reasons
or not approving a law, he says :
*<And I cannot, from a confidence in the legal
knowledge, integrity, and fortitude of my former breth-
ren in the Supreme Court, risk my character in a Judi-
cial decision on this question, when I do not foresee
any advantage to be derived to my country, from a
possibility of success."
Butp sir. if it is once established that the Judi-
ciary is a subordinate and dependent branch of
the Government, I acknowledge that they have
no right to judge of the constitutionality of a law,
or, if they have the power, they will be afraid to
exercise it. Upon this principle, where will an
influential partisan and an insignificant individual
meet to adjust their claims? In this House, or
in a tribunal under the influence of this House?
Where will the powerfnl State of Virginia and
the State of Delaware meet upon terms of equali-
ty ] in this House, or in a tribunal under the im-
mediate control of this House ? Where could the
Federal administration of justice in this country
be deposited with more safety than where it is ?
Intrenched as our judges are, they can do but lit-
tle harm, but much good ; from their situation
they can have no temptation to make inroads upon
the rights of the people; there is no such thing
as Judicial patronage 3 they can appoint no offi-
cers, collect no moneys, raise no armies, raise no
fleets. They have nothing but their virtue and
talents to recommend them to the people. If it
is within the power of human contrivance to se-
lect a spot where the streams of justice will flow
pure and uncontaminated, it is in a tribunal of in-
dependent judges.
The three grand branches of our Government
are well arranged. The President has his pro-
portionate weifi;ht in the Judiciary, by appointing
the judges ; when they are appointed they are in-
dependent, and in this situation are to guard the
Legislature from making encroachments on the
liberties of the people. The Legislature, in turn,
have a check on them by bringing them to trial
and punishment, if they should become corrupt-
ed ; this trial is to commence in this House, which
will always be a repository of a sufficiency of
passion and spirit to commence the impeachment,
if there is a reasonable cause ; the trial is to be
ended in the Senate, where the members, from
their permanency, will be likely to be cool, and
not convict unless they are guilty. Thus the
parts are interwoven, operating as checks and
controls on each other; but once cut the ligament,
and perhaps the dreadful consequences have not
been too highly colored. The eflfect may not be
immediate, but let the principle be practised upon
by two or three changes of administration, and it
will become as much a matter of course to re-
move the judges as the heads of departments, and
in bad times the judges would be no better than
a sword in the hands of a party, to put out of the
way great and obnoxious characters for pretended
treasons.
The independence of the judges was a great
point gained by the people of England. While
the tenure of office depended on the nod of the
Crown, they supported the arbitrary measures of
the.King; in one instance they decided that the
King had a right to levy ship-money, without the
consent of Parliament or people ; and many an
instance mi^ht be brought to the recollection of
this honorable Committee, where they determined
through fear, and not from judgment. It is said
they are not independent of Parliament. Why.
sir, nothing is independent of Parliament ; and
there is not the same necessity there. There be-
ing no written constitution in England, the Judi-
ciary forms no check upon Parliament; and, be-
sides, our Government is not a copy of the Brit-
ish Government ; and this is not the only solitary
instance where we have outstripped, as it is called,
our too favorite prototype. There is not a lead-
ing feature in the Constitution that bears testimo-
ny of any servile imitation ; it is our opponents
who wish to test our Constitution by the princi-
ples of the British Government ; it is they who
wish that a construction be put upon the Consti-
tution by Congress, which shall be considered as
the Constitution itself; and are unwilling that
there should be any check to oppose it ; and of
course, every construction put on it by the differ-
ent Legislatures, will exhibit the appearance of a
new Constitution, a constitution to be tossed and
blown about by every political breeze. The pow-
ers of Congress will oe equal to the powers of the
English Parliament, transcendant, splendid, and
without control. I little expected that such lord-
ly power would be grasped at by our plain Re-
publicans, who have no ambitious desire.s, and
who wish rulers to be contented with humble
prerogatives.
Mr. Chairman, when I reflect upon the intrin-
sic nature of the question, I am confounded and
amazed ; it is vast indeed — from a dread of its
terrible consequences. Yet, in its nature, it con-
sists in the open denial of the obvious meaning of
a few words in the Constitution ; we repeat these
words, gentlemen deny their plain sense. We
read '' That the judges, both of the supreme and
' inferior courts, shall hold their offices during
* good behaviour." Our opponents say that these
words do not mean " that the iudges ooth of the
' supreme and inferior courts shallhold their offi-
' ces during good behaviour." The meaning of
these words is entirely different; it is, in fact, the
645
HISTORY OF CONGRESS.
546
February, 3802.
Judiciary System.
H. opR.
reverse ; they do not infringe our power ; they re-
fer to the Executive; although the office to be
holden is not of Executive creation, and he can
neither make it nor destroy it : the thing to be
holden during good behaviour, is an object of Le-
gislative creation. Certainly our opponents can-
not drive us out of the firm ground on which we
stand, and tell us that these words are not in the
Constitution. They are, and how are they to be
got rid of? No otner way, under Heaven, Mr.
Chairman, than by a bold and arbitrary assertion
that they do not bear their natural meaning; that
they do not bear the same meaning which they
bear in another part of the Constitution. The
people have said that a judge shall Jiold his office
until a certain event shall happen ; the rulers say
no, we will shorten the period, and this is not
breaking the Constitution ; or, in other words, the
people have said that a judge shall hold bis office
during ffood behaviour ; the rulers say, the mean-
ing of that is, that the office can be taken away
at any moment. Why. sir, what part of the Con-
stitution will bold gentlemen? what words are in
it .that are strong enough, and what meaning can-
not be as easily distorted and perverted? We have
a right to our seats here for two years, if we do
not behave disorderly ; yet it might as well be
said that the meaning of that is, that two-thirds
can expel the o'her third at any moment, not-
withstanding their good behaviour. Our oppo-
nents complain of the want of power ; that tneir
power would be too much cramped and restrained
from its natural freedom by our construction.
Why, sir. that is the object of a written Constitu-
tion, to place objects out of the reach of Legisla-
tive power. It is its great and grand design.
I ask pardon of the Committee for detaining
them so long. I ascribe no wicked motives to our
opponents. I have the charity to believe that
their motives are good and virtuous ; yet I am
confident, that through a mistaken zeal for the
good of the people, they are going too far, and
are destroying the Constitution of our country.
The further consideration of the said bill was
postponed till to-morrow.
Wednesuat, February 17.
A representation of sundry counsellors at law,
practising in the Courts of the State of New Jer-
sey, and in the Circuit Court of the United States
for the District of New Jersey, was presented to
the House and read, praying that the act of Con-
gress, passed on the thirteenth of February, one
thousand eight hundred and one, entitled "An act
to provide for the more convenient organization of
the Courts of the United States," may not be re-
pealed, for the reasons specified in the said rep-
resentation.— Referred to the Committee of the
whole House to whom was committed, on the
fourth instant, the bill sent from the Senate, en-
titled "An act to repeal certain acts respecting the
organization of the Courts of the United States,
and for other purposes."
Ordered^ That Mr. Dennis be added to the com-
mittee appointed, on the ninth instant, to prepare
7th Con .—18
and bring in a bill or bills " for opening a navi-
gable canal to connect the waters of Potomac riv-
er with those of the Eastern Branch thereof,
through Tiber Creek, and the low lands at the foot
of the Capitol Hill,** in the room of Mr. Sprigo,
who resigned his seat in the House on the eleventh
instant.
On motion, it was
Ordered^ That Mr. Brent be excused from serv-
ing on the committee appointed, on the eighth
of December last, " to inquire whether any, and, if
any, what, alterations or amendments may be ne-
cessary in the existing government and laws of
the District of Columbia, and to report by bill, or
otherwise;" and that Mr. Campbell be appointed
of the said committee in his stead.
A Message was received from the President of
the United States, transmitting the report of the
Director of the Mint. The said Message, and the
report referred to therein, were read, and ordered
to lie on the table.
Another Message was received from the Presi-
dent of the United States, transmitting a state-
ment of the expenses incurred by the United States
in their transactions with the Barbary Powers,
and a roll of the persons having office or employ-
ment under the United States. The Message
was read, and, together with the documents ac-
companying the same, ordered to lie on the table.
JUDICIARY SYSTEM.
The House as^in resolved itself into a Com-
mittee of the wnole House on the bill sent from
the Senate, entitled "An act to repeal certain acts
respecting the organization of the Courts of the
United States, and for other purposes."
Mr. Thompson'. — I find the opinions I enter-
tain, so extremely adverse to the sentiments yes-
terday expressed on this subject by the honorable
gentleman from North Carolina, (Mr. Henuer-
soN,^ who opened this debate, and the honorable
gentleman from Pennsylvania, (Mr. Hemphill,)
whose great ingenuity I feel pleasure in ac-
knowledging, that I feel myself impelled to offer
to the consideration of the Committee a few ob-
servations in reply to the arguments used by those
gentlemen. But. Mr. Chairman, while I pay the
tribute of my respect to the eloquence and anility
which the gentleman from North Carolina has
displayed in the discussion of this subject, I must
pray that honorable gentleman to pardon me
when I declare myself unable to follow nim, when,
soaring on fancy's airy pinion, he transported us
across the Atlantic, and presented to our view, io
the most vivid colors which language can portray,
the spirit of innovation, sweeping morality ana
good order from the earth. Nor will I pretend,
sir, that my humble genius will enable me to pur-
sue him, when he forced this same spirit of inno-
vation to mount the whirlwind and lash on the
storm. But, sir, with such talents as I am en-
dowed with, I have no objection to going into the
consideration of the question before the Commit-
tee, and pursuing the order wJiich the gentleman
has had the goodness to suggest, as the most nat-
ural into which the subject can be divided — that
547
HISTORY OF CONGRESS.
548
H. OP R.
Judiciary System,
February, 1602.
is, 1st. The power of the Legislature to pass, and
2dly, The expediency, under the existing state of
things, of passing the bill now upon your table.
Under these two heads, I will endeavor to meet,
as far as I shall be able to recollect them, the
most impressive arguments which have been used
by the gentlemen ; and I will beg leave in the first
place to call the attention of the Committee to the
eighth section of the first article of the Constitu-
tion, which has been very slightly touched on by
the gentleman from North Carolina, and whicn
has been attended to. with much ingenuity, by the
gentleman from Pennsylvania. By this section
the Legislative powers of Congress are defined.
^♦Congress shall have power," says the Constitu-
tion, "to levy taxes, to borrow money, to coin
money," and, among a variety of other powers,
^^0 constitute tribunals inferior to the Supreme
Court." It is an axiom in politics that an or-
daining power always embraces a repealing
power; it Congress nave a right to constitute
courts, they have the right to modify and to
annul the courts so constituted ; this, like va-
rious others, is merely a discretionary power, to
be exercised, or not exercised, as Congress shall
find conducive to the public welfare ; the grant-
ing a power does not oblige the exercise of that
power ; neither does the exercise of power make
the laws resulting from thnt Constitutional exer-
cise of power unchangeable and irrepealable.
The same Constitution, giving this power, gives
various other powers, as I have already shown ;
yet it has never been contended that the laws
passed under these conceded powers are irrepeala-
ole. Still, by a parity of reason, and with a ref-
erence to this particular section of the Constitu-
tion, if the laws relating to the Judiciary estab-
lishment of the United States are irrepealable, so
must the various laws passed under these granted
powers, relating to your revenue, to your army, to
your navy, to your mint, be irrepealable. But
every gentleman knows that laws resulting from
these powers have been passed, have been modi-
fied, and have been repealed ; and so likewise has
the law establishing the Judiciary system. With-
out carrying you through the tedious detail of the
twenty-six or twenty-seven laws which have been
passed upon this subject, it will be quite sufficient
for ray purpose to notice the law of the last ses-
sion of Congress, the 27th section of which be-
gins with these words :
" And be it further enctctedy That the circuit c^urt
of the United States heretofore established shall cease
and be abolished."
We travel not then in a wilderness, Mr. Chair-
man, untrodden by human footsteps ; our immedi-
ate predecessors, it appears to me, are the pioneers
who point out to us the path we should pursue
for the benefit of our constituents. They have
not only abolished the circuit courts, but reorgan-
ized the whole system; they have constituted new
courts and new judges, and they have lessened
the duties of the judges of the supreme courts.
To say that a subsequent Legislature have not a
right to repeal a law of a precedent Legislature
is to proclaim such precedent Legislature infalli-
ble— that they are more just, more wise, more
competent to the exercise of their functions, thau
any Legislature which shall follow them. It is a
contradiction of the progress of knowledge, and of
the improvements which may result from experi-
ence; It is a denial of the utility of frequent elec-
tions; because that Lcjgislature which had attain-
ed the acme of perfection ought to be permanent
and unchangeable. The law, however, of the
last session, which I have just now cited, having
modified the courts of the United States, con-
cedes the power of modification to be in the Le-
gislature. But, sir, even this concession, such as
it is, is now, by the arguments of gentlemen, so
clogged with appendages, so qualified by exposi-
tions, that whilst with one breath the power of
modification is admitted, with the very next that
power is unnerved, is rendered useless ; for. says
the gentleman from North Carolina, a department
of the Government has been erected, called the
Judiciary, not holding their office during pleasure,
but during good behaviour, and whatever power
attempts to deprive them of their offices violates
the Constitution. It is admitted, then, that Con-
gress have power to modify the law; but it is
denied that they have power to abolish the offices
of the judges.
Let us then inquire, Mr. Chairman, by what
tenure the judges hold their offices: '* The
juds^es, both of the supreme and inferior courts,
shall hold their offices during good behaviour.''—
ConstitiUion, article 3, section 1. The gentleman
from North Carolina inquires, If they nave been
guilty of any misdemeanor? How, then, are we
to break down this Constitutional rampart with
which they are entrenched? How, to use the
gentleman's own expression, are the judges to be
hurled from their offices ? There is no gentleman.
Mr. Chairman, within these walls, who would
more sincerely wish the Judiciary to possess a
due and proper independence than myself; bni
although I do not admit the right of the Legisla-
ture to hurl these judges from their offices, yet 1
must contend and shall ever contend for the right
which Congress possesses to abolish an office ; or.
in other words, to repeal a law creating an office,
whenever it shall be plainly proved to them thai
such an office is unnecessary and oppressive.
They may hold their offices during good beha-
viour, if tneir offices exist ; but most certainly the
moment the office is legally destroyed — that is,
the moment the law establishing the office is re-
pealed, there must be an end of the tenure. Those
sages who formed the Constitution, Mr. Chair-
man, never contemplated a privileged order of
men in that society for whose happiness they
formed that instrument. The exposition, which
is now s^iven to it, is very difierent indeed from
that which was intended by them. I have read,
and have heard, sir, tnat this is a Government of
experiment. That in the annals of nations it has
no likeness — no prototype. The effects of this
particular department of the Government were
not better understood than the efiects of the other
departments of the Government; it was to be
tested by experience, the touchstone of truth ; if
549
HISTORY OF CONGRESS.
550
February, 1802.
Judiciary System.
H. OP R.
one system in its operation did not answer the
expectation of the Legislature, ample room was
allowed for the introduction ojl some other, and
for the abolition of the former ; hence come the
expressions ^'from time to time ordain and estab-
lish." What says the Constitution ? ^' The Ju-
dicial power of the United States shall be vested
in one Supreme Court, and such inferior courts,
as Congress shall from time to time ordain and
establisn." Congress may, then, or Congress may
not from time to time ordain and establish courts.
But, if they establish courts, so likewise may they
abolish courts. Into what a yariety of absurdi-
ties shall we be plunged, if we reject this reason-
able interpretation? The right to modify the
law being conceded, but not the right to deprive
the judges of their offices, our country would ex-
hibit a spectacle which it never has yet, and I hope
never will exhibit — officers without offices —
judges without courts — a privileged order — out of
the reach of the Constitution, (tor being deprived
of their offices they cannot be impeached,) draw-
ing money from the Treasury and rendering no
services for their salaries. Is this the meaning of
that Constitution which declares, that ^ The
judges during their continuance in office shall re-
ceive a compensation for their services ?" A com-
pensation ?
But suppose, Mi. Chairman, they perform no
service — suppose there be no service for them
to perform, what, then, is to be their compensa-
tion? Will the judge say to the Legislature, in-
crease my duties, make them proportionate to my
salary, and I will perform them ? Not so, Mr.
Chairman ; an increase of salary is never objected
to ; a diminution of duty is never objected to ;
butj if duties are increased, salaries must also
be increased. If I understand the word ' " com-
pensation,'' it signifies a something given for a
something performed. But, if there be no duty
performed (and if there be no office there can be
no duty) then there ought to be no compensation.
In the English language there is such a word as
"sinecure.'' This is a word, Mr. Chairman,
-which as yet we do not practically understand.
This is a word abhorrent to the spirit of our Con-
stitution. Yet, sir, if the construction of the Con-
stitution, which is now contended for, be admit-
ted, this will be a word which we shall soon prac-
tically feel, and practically understand. We shall
have a set of men receiving the public treasures
not in consideration of public services, but with-
oat any services whatever being performed ; or, in
other words, we shall lay the foundation of a
sinecure svstem, the consequences of which will
be incalculable, and the effects of which will be
indescribably destructive.
But. Mr. Chairman, I will show you a prece-
dent, and a recent one, too, where the Legislature
put a different construction upon the Constitu-
tion ; I will show you a precedent where a Fede-
ral Congress, our immediate predecessors, did not
hesitate to exercise the powers we contend for.
By the 27th section of the law of the last session,
T^hich I have had occasion before to advert to,
the circuit courts are abolished. Then that Con*
gress not only thought themselves justifiable in
touching the judges of the inferior courts, but of
the Supreme Court likewise; for you will find
that the same law wbich constituted the Supreme
Court, allotted to the judges of that court, partic-
ular and express duties or offices — that is, to per-
form the duties of a jud^e of the Supreme Court,
as is in that law denned, and to perform the du-
ties of judges of the circuit court, as is likewise
defined in that law ; and in abolishing the circuit
courts, half the offices of the judges of the Su-
preme Court were abolished*
Perhaps, Mr. Cbairman, that Congress had as
great a right to abolish the whole office as half
the office ) but whether that was an infraction of
the Constitution, or whether it would bean infrac-
tion of the Constitution to abolish the office of a
judge of the Supreme Court, I will not detain
you to inquire, because it appears to bear but litUe
upon the immediate subject before us, it not being
the intention of the bill, as I understand it, to in-
terfere with the offices of the judges of the Su-
preme Court, further than to restore them to that
firm, that rigbtful, that Constitutional ground, on
which they stood previously to the passage of the
law of the last session, and to all the duties and
immunities of which I most sincerely wish to see
them restored.
But. Mr. Chairman, the gentleman from Penn-
sylvania has informed us. it is acknowledged that
the law of the last session is Constitutional ; in
this I can by no means agree with that gentle-
man. There is one section in that law, sir, which
in my humble opinion is a flagrant violation of
the Constitution. By the 24ih section of that law
the district courts of Kentucky and Tennessee
are abolished. Had our predecessors stopped at
this point, we should have no cause on this day to
charge them with a violation of their charter, they
would have done no more in principle than we
now contend we have a right to do. But they
went further — they usurped a power in my opin-
ion not given them by the Constitution, thej
usurped a power exclusively vested in the Presi-
dent and Senate. By the seventh section of the
same law, the judges of the district courts of Ken-
tucky and Tennessee, are appointed circuit^udges
in fact, not indeed in name, but in reality the
duties of circuit judges of tne sixth circuit are
assigned them. The district courts of Kentucky
and Tennessee are abolished, and I wish to be in-
formed if they are not circuit judges to all intents
and purposes, and I wish further to be informed,
if they are not circuit judges appointed by the
Legislature, and in direct violation of that article
of tne Constitution, which has. in the most express
terms, vested this power in the President and Sen-
ate? Sir, did I apprehend the gentleman from
Pennsylvania aright, when I understood him to
say, the name of a judge does not define or con-
stitute the duty of a judge ?
This is indeed a melancholy exemplification.
Shall I be told that by the law they are styled dis-
trict judges ? How long, Mr. Chairman, are we
to be imposed on by sound, how lon^ are we to
be entangled with the cobwebs of sophistry ? But
551
HISTORY OF CONGRESS.
552
H. OP R.
Judiciary System,
February, 1802.
sir, the gentleman from North Carolina has
warned us, solemnly warned us. against a violation
of the Constitution. Was that gentlemen a mem-
ber of this House when the law which I have just
been speaking of, passed ? I perceive by your jour-
nals that he was — why then, sir, were not these sen-
sations, which he now experiences with such ex-
quisite sensibility, awakened ? Why were they
not awakened a year ago, when he might perhaps
have prevented an actual violation of the Con-
stitution? I ask the honorable gentleman, sir,
when with a sacrilegious hand this vital wound
was inflicted on the Constitution, if he raised
the plaintive cry of— Spare, oh ! spare the Con-
stitution of my country ? Yesterday, sir, the gen-
tleman informed us if the bill on your table should
pass he would heave no sigh, he would drop no
tear over the expiring Constitution. When that
law passed, did he heave no sigh, did he drop no
tear? Oh, no, sir, very different was the course
which was then pursued. With cool, with cruel
deliberation, the devoted victim was immolated,
and the blood which issued from the gaping wound
will forever stain the pages of your statute book.
Mr. Chairman, the expediency of the law now
under consideration, and the propriety of adopt-
ing a measure of this nature, at the present time,
have been so fully and so satisfactorily discussed
in the Senate, noc many days a^o, that to this
point I shall apply but few observations. Coming
from a State where justice is administered with
promptness and frugality, I confess that the stu-
pendous fabric of the Federal Judiciary excites
my astonishment. I had, sir, supposed, that the
document, which has been furnished by the Ex-
ecutive, would be a full and complete answer to
anything that could be said on this division of the
subject ; but, sir, the (gentleman from Pennsylva-
nia has informed us that if the undecided causes
of the State of Maryland were added, the aggre-
gate number of depending causes in the courts of
the United States would probably amount to six-
teen hundred, and he inquires if it is practicable
for the courts, after the repeal of the law of the
last session, to determine this number of causes
scattered over the United States ? Sir, when I
cast my eyes across the Potomac, and call to re-
collection the system of jurisprudence established
in my country, I cannot hesitate a moment in giv-
ing him an anirmative answer.
I have not, Mr. Chairman, nor was it possible
for me to procure, documents from the district
courts of my State to show to the Committee the
number of suits which are depending in them.
But, sir, wben I reflect how often I have seen a
venerable citizen of that State, respectable for his
flfreat learning, respectable for his irreproachable
life, and respectable for his years, (being ag^ed I be-
lieve, full seventy,) who is judge of the high court
of chancery there, devoting his days and his
nights to the avocations of his office, m the plain
garb of a common citizen, dispensing justice and
satisfaction to the multitude of citizens whose
causes are tried before his tribunal ; when I re-
flect on the number of citizens whose causes are
tried before his tribunal; wben I reflect on the
number of decisions which are made in his court
in the course of a year ; and when I overlook a
document which 1 have now in my possession
from the clerk of that court, and wnich I shall
presently offer to the view of this Committee, 1
can have no difficulty in pronouncing the sincere
opinion which I entertain that he performs more
duty, and perhaps with greater ability, than the
whole judicial corps of the United States. [Mr. T.
here read the document.]
And what, Mr. Chairman, is the compensation
which this venerable citizen receives? Fifteen
hundred dollars — no more; compare this with the
sum which supports and decorates the fair com-
posite column which we are informed is one of
the strong pillars of our Government ; and to
touch which we are told will occasion the beauti-
ful fabric to tumble in the dust. Have we not
State courts diffused in abundance over every
commonwealth composing this Union ? Are they
not competent to the decision of all cases of con-
troversy between citizen and citizen ? Is not the
jurisdiction of the Federal court extremely limited
from the true and genuine construction of the Con-
stitution? Where then was the necessity of the
law of the last session which ramified and in-
creased these courts? But, sir, the gentleman
from North Carolina has found another use for
them ; he has told us, " the people, when they
' established this Constitution did not delegate the
' power of legislation to the House of Representa-
^ tives alone. They established the Senate as a
* check upon the House of Representatives; know-
^ ing the violent impulses which often actuate pop-
' ular assemblies, tney gave the President, too, the
' power to negative laws. When a law had passed
* these various branches of the Government, it be-
' came necessary to erect a third department, called
' the Judiciary, not holding their offices during
* pleasure, but * during good behaviour.' " Did I
comprehend the argument of gentlemen when I
supposed it went to the establishment of this de-
partment as a check upon the Legislature, and did
I comprehend the argument ot the gentleman
from Pennsylvania, when he cited Judge Pater-
son's charge, which I have not seen, but from
which, as he read, I noted these words ** I hold it
to be the duty of the court in such case, to declare
the law null and void." If I have not misunder-
stood the srentleman, I confess my eyes are now
opened. I begin to feel some of tho.se apprehen-
sions which have been so strongly talked about,
and which heretofore I have not been accustomed
to experience. Not, sir, from a fear of usurpation
of power on the part of the Legislature, for they
are biennially responsible to their constituents for
the sacred observance of the charter of their
rights ; not, sir, from a fear of usurpation of puwer
on the part of the Executive, for the term of his
service is limited to four years, and therefore he
is liable to lose his office in case of an infraction
of the Constitution on his part, but from a desire
which, I fear, this check-department of the Gov-
ernment has to grasp at all power. Give the Ju-
diciary this check upon the Legislature, allow
them the power to declare your laws null and
653
HISTORY OF CONGRESS.
554
February, 1802.
Judiciary System.
H.ofR.
Toid ; allow the commoa law, a system extending
to all persons and to all things, to be attached to
the Constitutton, as I understand it is contended ;
and in vain have the people placed you upon this
floor to legislate ; your laws will be nullified, your
proceedings will be checked. As long as the office
exists the judse holds it during good behaviour;
he is, then, independent. Being independent, and
not having that decree of responsibility attached
to his office which is attached to the I^islature
or to the Executive, the powers granted by the
Constitution are to be strictly construed ; nothing
is to be left to implication; nothing to construc-
tion ; the letter is to determine the extent of their
power, and I conceive it never was intended they
should transcend it. I have, sir, looked into the
Constitution with a scrutinizing eye, to discern, if
possible, whence these pretensions are derived.
There are but two clauses of the Constitution,
•which can even give a pretence for the power
'which is contended for. The first is as follows:
** The Judicial power of the United States shall ex-
tend to all cases in law and equity, arising under this
Constitution, the laws of the United States, and trea-
ties made, or which shall be made, under their au-
thority."
To declare a law null and void is certainly not
such a case, either in law or equity, arising under
the Constitution, as was contemplated to be em-
braced by the paragraph I have cited. It will be
in vain to say that, without such a construction,
the Constitution cannot be satisfied. I am not
now to learn that there are two descriptions of
cases which will be fully sufficient to satisfy the
terms there expressed, in their utmost extent, as
where cases shall arise between citizens of differ-
ent States, or between citizens and foreigners,
ivhich are to be decided either by State laws or by
foreign laws ; or where cases shall arise between
citizens of the same State in consequence of an
unconstitutional exercise of power on the part of
the State, in emitting and making bills of credit
a lawful tender. The other clause of the Consti-
tution is as follows :
*<ThiB Constitution and the laws of the United
Stfiiea, which shall be made in pursuance thereof, dec.,
shall be the supreme law of the land, and the judges in
every State shall be bound thereby."
This, certainly, from the words with which it
concludes, was mfended as an instruction or di- |
rection to the judges of the State courts ; and if
they were transposed, f>erhaps, would more fully
communicate the intention of their framers, read-
ing in this form : *^ The judges in any State shall
be bound by this Constitution," <Slc. Is there any
reasonable person, sir, after this explanation, will
say that by either or both of these clauses a |M>wer
is given to your Judiciary to declare your laws
null and void ? They may, to be sure, lor a while
impede the passaj^e of a law, by a decision against
its constitutionality ; yet, notwithstanding the law
is in force, is not nullified, and will be acted upon
whenever there is a chanse of opinion. The Le-
gislative, Executive, and Judicial departments
should be kept separate and distinct. This I
agree to, it has become an axiom in politics that
they should. Yet, I inquire, will this be the case
if you allow to the Judiciary the power to annul
your laws, and contend that the common law is
attached to the Constitution? I am persuaded
you thereby concentrate all power in one depart-
ment. The common law is the Constitution, and
the court may, if they please, declare it void.
But I have not heard it explained whether the
common law simply, without statutory amend-
ments, or the common law with statutory amend-
ments, or with what statutory amendments, is to
be attached to the Constitution? I believe it is
intended they have a right to apply such parts of
it as are applicable to the Constitution. The
common law extends to all persons and all things.
The judges have the right of adopting this law,
or such parts as they may deem applicable ; they
can annul your laws. Ii these powers are really
contended for on the part of the Judiciary, and if
these powers should evei«be conceded, they would
without doubt possess an unlimited and uncon-
trollable power of legislation. I am free for my
own part to declare, that I had rather live under
the government of a lenient despot than such a
government of judges. And if those powers are
really conten(]ea for, I feel no hesitation in inform-
ing you, Mr. Chairman, that this is the tree where
despotism lies concealed. And this, too. is the
auspicious moment when those branches shall be
pruned away, which of late have vegetated with
extraordinary luxuriancy. But, sir, nurture it
with your treasure, stop not its ramifications, and
suffer me seriously to inquire, What will be the
consequence ? It will overshadow your extensive
Republic ; your soil will become too sterile for
the plant ot liberty ; your atmosphere will be con-
tammated with its poisonous effluvia, and your
soaring eagle will fall dead at its root.
Mr. Davis. — Mr. Chairman. I beg leave to be
indulged with a few remarks on this subject,
which I shall submit with great diffidence, being
sensible of my incompetency to illustrate a subject
of such immense importance; but as I am to give
a vote, the reasons that govern that vote I think it
my duty to express. I rejoice that we are called
upon to decide this great national question at a
time when the public mind is calm and tranquil,
when, uninfluenced by extrinsic circumstances,
we can settle a principle of such magnitude to our
country.
I did hope we should have taken up this subject
with cool deliberation, and I have to lament that
the honorable gentleman from North Carolina
(Mr. Henuerson) who opened the debate, instead
of appealing to our sober reflections, sounded the
trump of alarm. That honorable member told us
we were about to prostrate the Constitution. If this
really be the case, the sound of danger is proper,
and we, who are about to do it, must expect to an-
swer it to our country, and to generations yet un-
born. But above all, we must expect to answer
for it in a day of awful reckoning. The honora-
ble member told us "that the spirit that had rode
on the whirlwind and directed the storm — the
spirit that had brought twenty millions of people
I
1
555
HISTORY OF CONGRESS.
556
H. OP R.
Judiciary System,
February. 1S02.
OQ the seveutb day of December last, and with
ffigaotic strides was bearing down all before it."
When the honorable member spoke of this tre-
mendous spirit. I was at a loss how to understand
him. I thought he alluded to a spirit that a few
years ago threatened to humble my parent State
m dust and ashes, because her citizens refused to
sing praises to the late Administration, and own
its superior wisdom and patriotism. But when
the gentleman spoke of twenty millions of people,
I found he alluded to the French nation. On a
subject where the interest of the United States is
alone concerned, and which furnishes matter for
the most brilliant or diffusive genius. [ wonder
that gentlemen will not confine themselves to
America, and not seek for occurrences among the
to bow to a single despot — had entered this House that the judge shall fill the office during that time,
and that he cannot resign without first misbehav-
ing, which is not correct; because we know that
judges have resigned, and have been removed by
more eligible appointments; neiiberof which could
be done, if the principle be a sound one; for then
the contract operates unequally, as the Govern-
ment is bound to continue an office, and the judge
is at liberty to vacate when he pleases. If there>
fore it is a contract between the judge and Gov-
ernment,*to make it equal, the Government should
have the right to abolish the office when it thought
it expedient, and the judge the right to vacate it
when he thought proper ; and this I hold to be the
proper ground, cut 1 make a material distinction
between removing a iudge from office and abol-
ishing the office; the first implies guilt, the latter
transatlantic nations. But I ask that honorable that ine office is useless, and abolisning it imports
member if he is now prepared to degrade that
spirit so much approved by the Great W^hing-
ton of America, that in addressing a late Minister
of that nation, he spoke the following words:
" To call your nation brave is but to pronounce
common fame. Wonderful people P' Is he pre-
pared to degrade a spirit that resisted the union of
Kings and £mperors against an infant Republic ?
This, as well as other remarks, are foreign to the
subject, but deserve to be considered. The hon-
orable member then told us that everything that
bore the majesty of the people wa.s about to be
destroyed. The excise, he says, pledged to pay
the national debt, is to be repealed. Has that hon-
orable member forgotten the agitations that this
excise law co.«t the public? Has he forgotten that
the prison of Philadelphia was filled with those
who resisted the law? Has he forgotten that cit-
no blame to the judge. The office is created by
act of law; the appointment to fill it is by Con>
stitutional authority; to remove a judge without
proper complaint would be wron^, but to abolish
an office created by law, when K>und useless or
inexpedient, would be proper. The gentleman
reads further, "And shall receive for their services
a compensation which shall not be diminished
during their continuance in office." It is worthy
of remark, that the word compensation is not an-
nexed to the word office, but is attached to the
word services.
This evinces to my mind that the compensation
is for services to be performed by the judges, and
not for holding the office. Thus, when we abol-
ish the office, we leave no services for him to per-
form; but he retains his commission, which we
have no power to wrest from him. and the latter
izeo was armed against citizen, and State against | words go to prove it, ^' shall n^t be diminished
State, to enforce this 4a w, and that it was carried
into execution at the point of the bayonet ? Does
that gentleman think the majesty of the people
consists in holding the law in one hand and the
sword in the other, and ruling the nation with a
rod of iron? The Mint, he says, is to be knocked
down. Surely he does not remember that it cost
us twenty-one thousand dollars per annum, and
renders us no service. Does he think the majesty
of the people consists in useless expensive estab-
lishments from which no good has, or ever will
result ?
The gentleman then reads the Constitution, and
tells us the acceptation of the office of iudge, is a
contract between the Grovernment and the indi-
vidual who undertakes the office. The words on
which he relies are, " the judges of the Supreme
and inferior courts shall hold their offices during
good behaviour," hence he infers that the Govern-
ment is obliged to continue the office to the judge
as lonff as he behaves well, whether it has any-
thing for him to do or not ; and that to take the
office from him is a violation of the contract and
Constitution. Let me examine this principle and
see to what it leads. If it be a contract, it is
equally bindincr on the iudge and Government; if
the words ''shall hold his office during good be-
haviour," mean that the Grovernment shall con-
tinue the office during that time, it must also mean
during their continuance in office." The word
compensation being attached to the word service,
to complete the riglit to compensation, there must
be an office of judge, and services rendered in that
office. When this law we are about to repeal
passed, this seems to have been the opinion of those
who passed it. For by a Legislative act they abol-
ished the district courts in Tennessee and Ken-
tucky, and created circuit courts in their stead,
and directed the judges of the district courts to
perform circuit court services. Where, let me ask.
IS the difference between our abolishing courts
and a former majority doing it? This I uke to be
the only difference, we abolish courts and do not
order judges to do services in other courts. The
last Congress abolished courts and then seized the
power confided by the Constitution to the Presi-
dent and Senate, namely, the appointment of
judges in certain newly created courts.
But it is said the law of last ses.sion is admit-
ted to be Constitutional, and that we have no pow-
er to repeal it. Look at the second section of this
law. and compare it with the Constitution, and no
candid man will declare it Constitutional. The
original Jurisdiction given by that section to the
judges of the Supreme Court exceeds those intend-
ed by the Constitution. [Here Mr. Davis read
the law and Constitution.] Besides this I think
there is an infraction of the Constitution in the
657
HISTORY OF CONGRESS.
558
February, 1802.
Judiciary System.
H. orR.
twenty-seventh section, as well as in that part
which relates to the judges of Tennessee and
Kentucky before alluded to. As to the right of
repealing, I cannot hesitate, because I believe this
Congress possesses equal power with the former,
and that the power of making and repealing laws
is at all times vested in the Legislature. If this be
not the case, we lose the benefit of experience, the
only faithful guide to human concerns. Most of
our statutes are experimentally adopted, and when
we find that they operate disadvantageously, we
doubtless have the power of repealing. The Con-
stitution in giving power to Congress says, they
shall have power to "provide for the common de-
fence and general welfare of the United States."
In another place it says, *' Congress shall have
power to malce all laws which shall be necessary
and proper to carry into effect the foregoing pow-
ers." Those powers are to provide for the gene-
ral welfare. Now we think, to provide for the
general welfare, we ought to make a law declar-
ing the late Judiciary law repealed. Again, it has
often been said, that our Government depends
very much on the opinion of the people. This
Government is divided into three distinct depart-
ments. A late ruling party, finding their power
ahout to be wrested from their hands by the peo-
ple who elect the Representatives and the State
who elect the Senators, in the last moments of
power passes a law by which they completely
take hold of one entire branch of our Government,
and fill it with men whose politics are at war with
the people. There a majority does not rulej the
minority in defiance of the majoritjr hold one
branch. I ask, if this is compatible with general
opinion or the settled principles of our Govern-
ment? The honorable member from Pennsylva-
nia, ^Mr. Hemphill,) in his argument, puts me in
mind of the boy who fights his shadowy he raised
arguments for us, and then combatted them; the
man who runs by himself is sure to win, so the
gentleman was sure to triumph, because he took
for us the weakest around, and for himself the
strongest. Those wno read his speech will sup-
pose the arguments he combatted had been ad-
vanced on this fioor; but the fact is otherwise;
he was the third who spoke, and all who hear
me know that the ground he took and called ours,
was not occupied by any of us. Is this a fair and
candid manner of acting? He tells us that be-
sides the judiciary laws there are other laws that
Congress cannot repeal ; that a State is admitted
into the Union bv law, and that there is no power
can repeal that law; that a man is admitted to
citizenship by law, and no repeal of that law can
affect the citizen. The reason is obvious. If a
law admits a State into the Union, and the State
comes in according to the provisions of the law,
the law having had its effect, having discharged
Its functions, it becomes dead and cannot be re-
pealed. But if Congress should now say the
Northwest Territory should, in the year 1806, be
admitted into the t^nion as a State, at any time
before the law takes effect the repeal is in the
power of Congress. The same may be said as to
citizenship. I found my opinion of the expedi-
ency of repealing the Judiciary law, on another
reason in addition to that of the courts being un-
necessary ; I mean the power they declare they
have, in the language of Judge Patterson, to '^ de-
clare a law null and void." Never can I sub-
scribe to that opinion. Never can I believe the-
' Judiciary paramount to both branches of the Le-
gislature ; if it is, I have yet to learn it : there is an
end to legislation ; a knave or a fool can make-
void your best and most wholesome laws. In the
present state of things, how will it affect us ? The-
minority possessing one department of Govern-
ment, completely frustrates the views of the other
two, and governs the nation against the will or
the people and the Legislative and Executive pow-
er. I am willing to admit the Judiciary to be co-
ordinate with the Legislature in this respect, ta
wit, that judg&s thinking a law unconstitutional
are not bound to execute it; but not to declare it
null and void. That power rests alone with the
Legislature. But we are told this Judiciary is
necessary to check this House and the Senate,
and to protect the people against their worst ene-
mies. This is saying to the people, you are inca-
pable of governing yourselves, your representa-
tives arc incapable of doing it; in the Judiciary
alone you find a safe deposit for your liberties ;
and saying also, that the Judiciary is the vitals of
the nation, wherein all power, all safety dwells ;
that the Legislature is subordinate thereto and a
mere nominal thing, a shadow without substance,
its acts perfectly within the control of the Judi-
ciary. I tremble at such ideas. The sooner we
put men out of power, who we find determined to
act in this manner, the better ; by doing so we pre-
serve the power of the Legislature, and save our
nation from the ravages of an uncontrolled Judi-
ciary.
Mr. Bacon. — In this bill two important inquiries
are involved.
1. Is it consistent with the Constitution ? 2. Is
it expedient to repeal those acts ?
Before I proceed to speak directly to either of
these questions, I must take the liberty to advert to
an important observation made yesterday by the
gentleman from Pennsylvania, (Mr. Hemphill.)
In his very decent and ingenious speech with
which he then favored the Committee, he gave an
explanation of the terms office and court. Indeed
very much depends, as L conceive, on fixing accu-
rate ideas to those particular terms. Until this is
done, that part of the Constitution which applies
to the present subject, must remaiu in a great mea-
sure unintelligible, to me at least. Fixing the
true meaning of these terms, will, I conceive, go
far towards sol vine: &uy doubt that may exist rel-
ative to the constltutionalty of the present bill.
This idea, there is reason to oelieve, did not escape
the discerning mind of that worthy gentleman,
when he observed, that ^* office consists in certain
* power, jurisdiction and authority, conferred on a
* person, requiring certain duties. The court, the
* name of the institution, wherein that office is to
' be exercised. The name of the court may be
^ chan£;ed, and also the place where first holden,
* and the office be exercised in another place,"
R.
HISTORY OF CONGRESS.
Judidary System.
February, 1802.
:>5e were ihe words which he usad. I fully
e lo his explaoatioti of the term office, but
Tiuch doubl [he correctnt^s of his explana-
f the term touH, as it is used in the CoDsti-
I. Aod 1 am no) certain but that the ques-
>f conslilutimialily will very much depend
theideaihst isaffi ' ' ' ■ ' ■ * ■
e the
used ia that
sumelhing more than a
Although I will not undertake (o give on
ritative and perfectly accurate expjanatioa
: term, yet I may venture to say, that, as used
! Constitution, and in the law proposed to be
led, it seems to convey ihe idea of an iDsii-
I ordained and established for (he legal ad-
tratioo of justice. Those things termed
1 in the Constitution, are vested with power,
,re to exercise jurisdiction, original and ap-
e. These are attributes which, lo my mind,
ite something mori' than whalismeiely nam-
1 have considered courts as bein^ composed
sons vested with power, jurisdiction and au-
y, and of whom certain duties are required,
s,as bein^ composed or consistiac of officers,
tularly of judges; and I am apprehensive that
jldbenotless difficult to conceive of acouri,
e meaning of the Constitution, as existing
lUt officers, than it would to conceive of a Le-
ute without legislaiots, or of an officer with-
a office. If this is not a true, and ihc only
nation of the terra court, as used in the Con-
ion and in the act referred to in thn present
shall wiih lo hear it otherwise explained. If
tplanation is just, I believe it will be found
i sequel of debate lo go towards a deiermina-
f ihe question relative lo ihe con =litUtion alii y
: bill now under consideration.
Dslity of repealing the act
In referred to.
it should be found lo be unconslilutional to
I those acts, no consideration of expediency
; 10 have liie least weight. As to the mere
istitulionalily of ihe measure, I am apprehen-
his will be found not to be a question of vast
acy and inexplicable doubi, unless we are
sed to make it such.
ere are some things relating lo this question,
rhich may tend in some measure to illustrate
' ' ' about which there can be no reasona-
1 probably be admitted that the
iLtuiion aoes nol require the Legislature to
ih business sufficient lo employ the lime and
Is of all the judges of all the courts of the
^d Stales, let iheir number be ever so great.
II probably be also admitted, that (he Legis-
;are notrestricledbythe CoDsiiiuiionfromso
ding and altering (be laws from lime to lime,
ly on the one hand tend to diminish, and on
tber to increase the business lo be iraosacled
r judiciary courts resppc(tvely, nor are they
cted from transferring business from one ju-
; court (o another. And if the Legisla(ure
y way of transfer, or otherwise, diminish or
Irawoneparcof the business from a judiciary
juitt. ' It w
court, they may on the same general priaciplt
withdraw another, unless specially restricied b)
ihc Conslilulion. Confequenlly ihey may, if the}
see fit, Nt'iihdraw ihe whole in ibe same way.
All this, it is believed, will nol only be readili
admitted, but that precedents, from the actuate]
of ihe power of ihe Legislature which
here mentioned, are abuDdanily furnished
th<
Itself which it is proposed to repeal. And i
better author] I y in this particular case, cannot pos-
sibly exisi, than what is furnished by this acL Ii
is an authority which, as il applies to this partic-
ular ease, is not inferior to the Constitution itself
It is an authority which can neither be explained
away, nor misunderstood. It may with propriety
be-'<aid. that in this particular case, it is an author-
ity inalar omnium; it is indeed equal lo all oib-
ers ; because, if I am nol mistaken, it absolulely.
unequivocally determines ihe question relative to
the consiiiultonality of the present bill. 1 should
be willing, for myself, lo rest the issue entirely on
this ground. This is the principal ground that 1
shall lake.
By section tenth of this law, the powers in gen-
eral which, by the late law, were vested in the
former circuit courts, are transferred from those
courts to the circuit courts which are esiablisheii
by ihe present law.
By section twentieth, it is expressly provided
ihai "all actions, suil^, process, pleadings and
' other proceedings, of what nature and kind so
' ever, depeoding or existing in any of the present
' circuit couris of the United Stales, or in any ol
' the present district courts of the llnited States
' acting as circuit courts, shall be, and hereby are
' cODlinued over to the circuit couris established
' by ibis act."
By section tenth, it is provided that the circuii
courts established by this act shall have cogni-
zance of a great number of causes which were noi
in like manner cognizable before the former cir-
cuit courts, viz: ''of all actions cognizable by thr
'judicial authority of the Unilud States, where
' the matter in dispute is between four and fivt
' hundred dollars."
By the twenty-fourth section, it is ''enacet
' that the district courts of the United Slates, it
' and for the disiricls of Tennessee and Kenluc
' ky," in particular, ''shall be, and hereby are
' abolished."
By the Iwenty-sevenlh section, "it is furlbei
' enacted," generally, "that ihe circuit courts oi
' the United Slates, heretofore established, shall
' cease and be abolished.*'
Here we have a precedent for abolishing, by
a single Legislative act, all the judicial courts
of a certain descriplion throughout the United
Slates.
In short, sir, ihe present circuit courts arc
not only vested with powers different from the
former circuit courl.s, bul they are composed of
different men ; and that while the former judges
of these courts are still living, during their good
behaviour, and without their resignation, impeacb-
meni, or conviction.
All former circuii courts are, by ibe law in
561
HISTORY OF CONGRESS.
February, 1802.
Judiciary System.
562
H.ofR.
question, ipso facto abolished. If the circuit courts^
established by the law in questiou, are Constitu-
tional courts, as I take for granted they are, then
the former circuit courts do not now exist. And
what has become of them ? They have been an-
nihilated. By what power have they been annihi-
lated ? The answer is ready. They haye been
annihilated by the same power which first ^ye
them existence, and on the same likewise on wnich
the present circuit courts now depend for their
continuance in existence. If, as some gentlemen
contend, it is a violation of the Constitution for
the Legislature to abolish a judicial court, the
law itself which it is io contemplation to repeal,
must be an unconstitutional law. And I should
not suppose it to be a violation of the Constitu-
tion for the Legislature to repeal an uncoostitu-
tional law.
The act in question, by which the late circuit
courts were abolished, and the present circuit
courts established, either is, or is not, a Constitu-
tional act. If it is a Constitutional act, then it
was not a violation of the Constitution for the last
Congress to pass it. And if it was not a viola-
tion of the Constitution for the last Congress to
pass the act by which they abolbhed the circuit
courts which then were, and established those
which now are, it cannot be any more a viola-
tion of the Constitution for the present Congress,
by repealing that act, to abolish the circuit courts
which now are, and to establish new ones. If, on
the contrary, the act in question is an unconstitu-
tional act, I should suppose that oi itself was a
sufficient reason for repealing it; and that the
Constitution, instead of forbidding, demands a
repeal of it. So that, whether it is or is not a
Constitutional act, the result must be the same ;
to repeal it cannot be a violation of the Consti-
tution.
I am not disposed to play upon terms, nor
would I knowingly descend to a strain of mere
metaphysical quibbling on this serious and im-
portant subject. I may be mistaken, but I feel as
]f the argument was not only rational, but abso-
lutely conclusive. If it is fallacious, let it be fairly
met, and the fallacy will easily be detected. The
sentiments which I now express are not the cur-
sory thoughts of a moment, which have occurred
on the spur of the occasion. Whether right or
wrong, they are the result of serious and mature
reflection. If they are not sound, if they are not
salutary, if they are not predicated on those prin-
ciples of the Constitution which are to be con-
sidered as immoveable by any authority short of
that by which they were first established, let them
be rejected with all that abhorrence which the
tongue of man can express, or the human mind
conceive. For, I readily admit that the efiects re-
sulting from a violation of the Constitution by
the Legislature are not less, but, if possible, infi-
nitely more to be dreaded than what any gentle-
man has described.
Questions of this nature, sir, are not to be de-
termined by mere popular declamation, by a flood
of metaphors, nor yet by the less attractive force
of opprobrious terms. It is ardently to be desired
that nothing of this kind may ever be suffered to
tarnish the deliberations of this House. The sub-
ject before us is such as merits the most impartial,
candid, firm, and liberal attention. And such, I
hope, it will receive. Admitting that the law in
question was passed " in a gust of passion" — "at
a midnight hour" — ^and even with views hostile
to the equal rights of a free people — still it ought
to be met, if met at all, on principles directly the
reverse of all these. Otherwise, the remedy ap-
plied may prove to be infinitely worse than the
disorder it&elf of which we complain.
It ought, I think, to be agreed by all, that the
judges ooth of the supreme and of "such infe-
rior courts as Congress may from time to time
ordain and establish," shall nold their offices dur-
ing good behaviour; because this is expressly pro-
vided for in the Constitution. But. sir, I conceive
that, to abolish an office, and to remove an officer
from an office while that office exists, are, in the
meaning of the Constitution, as well as in com-
mon speech, distinct acts, however one of these
acts may afi*ect the other. To justify a distinc-
tion of this kind, I need only to refer again to the
act proposed to be repealed. Is that an act for
removing from office a number of judges who. by
the Constitution, are entitled to hold their offices
during good behaviour ? If it is, I will agree with
gentlemen on the other side, that it is an uncon-
stitutional act. And I shall expect that, for this
reason alone, if there was no other, they will agree
with me, that it ought to be repealed. And not
only so, but that it is the indispensable duty of the
Legislature to repeal it, and to restore those courts
which have been thus wantonly abolished, toge-
ther with the judges who have been thus uncon-
stitutionally removed from office. Even without
the aid of the act in question, I believe the dis-
tinction between removmg an officer and abolish-
ing an office will be found to be a real and ob-
vious one.
Congress are undoubtedly vested with Consti-
tutional power to repeal the act for laying and col-
lecting internal taxes ; and in doing this, to abol-
ish, all the offices that have been instituted for that
purpose. But it will not be pretended that Con-
gress have power, by a Legislative act. either to
appoint to, or remove from office, a single officer
in that department. A power then to abolish an
office, and a power to remove an officer from office
are in their nature distinct powers. Admitting
therefore, as I really do, that Congress are not, in
the meaning of the Constitution, vested with pow-
er to remove an officer from office, (whether Ju-
diciary or Executive it matters not,) it will by no
means follow that they have not power to repeal
the law instituting that office. Should a resolu-
tion be brought forward for repealing the law lay-
ing duties of excise on stills, &c., would any gen-
tleman who might be opposed to such a resolution,
venture to ground bis opposition on the unconsti-
tutionality of the measure from this consideration,
that it would in effect abolish three-fourths of the
offices in the revenue department of the Govern-
ment, and in this indirect way deprive a host of
officers of the offices which the Constitution has
563
HISTORY OF CONGRESS.
H. OF R.
Judiciary System.
o64
February. 1802.
placed as much without the power and control of
the Legislature^ as it has those of the Judiciary de-
partment ? Sir, I believe not. The argument,
nowever, would be neither more nor less conclu-
sive in one case than in the other. It is urffed,
within doors and without, that to repeal the Taw
would be no other than an indirect way of remov-
ing judicial officers from office, and of destroying
that legal tenure by which they hold their offices.
This argument, if such it may be called^ and if I
understand it, takes for granted the principal if
not the only matter in dispute, viz: that every Ju-
dicial officer has such a tenure in his office, as puts
the office itself entirely beyond the power and in-
fluence of the Legislature ; so that when the Le-
gislature have, by their own Legislative act, once
mstituted such an office, they can never afterwards
abolish or touch that office without violating the
Constitution under which they act. This, sir, is
a doctrine abhorrent from the principles of all free
governments; it is abhorrent from what has been
demonstrated, as I conceive, to be consonant to the
principles of tne Constitution of the United States ;
It is abhorrent from the sense and uniform practice
of the Legislature, ever since our Government was
established ; it is more especially abhorrent from
the express provisions of tne act itself, the repeal
of which is now in contemplation.
But, sir, permit me to asMt, what would be the
consequence of adopting the sentiment of our 0|)-
ponents? Would not this be a cunning and indi-
rect way of tying up the hands of the Legislature,
and of restricting that body in the exercise of those
powers which the Constitution has vested them
with for the safety and welfare of the community
at large? Would it not be a cunning and indi-
rect way of fixing an immoveable and intolerable
burden on the honest and industrious citizens of
the United States, for the private emolument of
court favorites, and idle sycophants, and useless
drones? And would conduct like tbis in repre-
sentatives evince a becoming and sacred regard to
the spirit of the Constitution, and to the trust re-
posed in them by[ their constituents? Or, would
It not rather furnish a melancholy instance of-the
betrayment of both? Let candor, let common
sense, let solid learning, let sound policy, decide
these solemn queries.
A decision grounded on all, or on any one of
these principles, is such as we wish to abide. And
I mean not to suggest a doubt but that our oppo-
nents are equally disposed to abide the same im-
partial test. By what I have now said, I mean no
more than to express that clear conviction which
exists in my own mind, that the principle for which
our opponents contend has a natural and direct
tendency to such a state of things as I have men-
tioned, however pure their views may be who
contend for it.
Whether the judges will be entitled to retain
their offices and to receive their salaries, provided
the act should be repealed, is. as I conceive, a ques-
tion entirely distinct from tnat which is now be-
fore the Committee. It may perhaps hereafter be
made a question, either before the Le{;i8lature, or
before a judicial court. Whenever this shall hap-
pen, then will be the proper time to consider it.
If from a fair and candid examination of the
subject it appears, as I think it does, that there is
notning in the Constitution which in the least de-
gree militates against the repeal of the acts, then
the only question which remains to be considered
is, whether it is expedient to repeal them.
With respect to this question, I will not go into
a minute discussion of it. I will only observe, in
general, that from the documents which we are
furnished with, and from the present situation and
state of the nation in general, it does not appear
necessary to retain ail the courts which by that law
have been constituted. It does not appear bat
that, to say the least, the business of these courts
may be transacted equally well by a less number.
And as it is in itself not only imprudent, but on-
just, to lay unnecessary burdens on our consiiiu-
ents for the private advantage of individuals; as
this would have a natural and most direct ten-
dency to weaken the Government, by destroying
the confidence of the citizens in it, and alienating
their affections from it, I am, for myself, fully con-
vinced that the^e laws ought to be repealed, and.
with my present views of the subject, I shall gire
my vote accordingly; although, I confess, i nm
not entirely satisfied with the act proposed to be
revived. And I will here take occasion to &ay. l
should, for myself, wish to add two or three more
judges to the Supreme Court, and to strike out of
that act the sum of five hundred dollars, and insert
a much larger sum. Perhaps something like this
may take place, either as an amendment to the
present bill, or at some future day. If such an
amendment might be obtained, I snould be much
better pleased with it than I am at present.
Mr. T. Morris, of New York.— I did flatter my-
self when the honorable gentleman from Virginii
(Mr. Thompson) detailed to this Committee the
mode of administering justice in the State which
he represents, that he would also have added what
the decisions and opinions of the courts of that
State have been, on questions analogous to those
which we are called unon to decide. But, sir.
since that honorable gentleman has thought proper
to refer to his own State as far only as arguments
drawn from thence could answer his purpose, and
has not communicated information which might
have been adduced from the same quarter, and
much more applicable to the present question. I
hope that it will not be deemed presumptuous io
me to do it. There is not, sir. a State in the
Union where the independence of the judiciary
has been more highly valued than in Virginia.
There is no part of America where a commis-
sion during good behaviour has been construed to
confer a more independent official tenure on a
judge than in the State to which I have alluded.
The construction, sir, which my friends and my-
self are now contending for, is more fully and com-
pletely established by the opinions and decisions
of the Virginia judges than it is by those of any
other part of the Union. And, sir, if I am entitled
to form an opinion from the evidence I hold in
my hand of the decisions which have at different
times been made by the judges of that State, if I
565
HISTORY OF CONGRESS.
566
February. 1802.
Judiciary System.
H. OF R.
am permitted to draw any conclasion from the
universal acquiescence which they have met with
from its citizens, I must believe that if a bill sim-
ilar to the one before us was introduced into the
Virginia Assembly, that so far from meetinji^with
the countenance or that body it would be scouted
out of it with indignation. Having made these
observations, I must entreat the patience of the
Committee, while I read the opinions to which I
have alluded.
[Here Mr. Randolph asked from what book
these opinions were quoted.]
Mr. Morris replied, from a "Friend to the
Constitution ;" and added, that he believed that
they were published with a view to this question ;
that they had been the subject of much examina-
tion and conversation, but that he had never heard
their authenticity doubted.
Mr. Morris then read the following extracts:
** The Constitution of Virginia declares, that ' both
Houses of Assembly shall, by joint ballot, appoint
judges of the supreme court of appeals, and general
court, judges in chancery, judges of admiralty, secretary
and attorney general, to be commissioned by the Gov-
ernor, and continue in office during good behaviour,' "
" The supreme court of appeius in Virginia con-
sbted of the judges of the court of chancery, general
court, and court of admiralty, who were by law de-
clared to constitute a court of appeals. The Legisla-
ture found the system inconvenient, and determined to
change it.
<* In 1787 this subject was taken up by the Legisla-
ture ; a system of circuit courts was adopted, and it
waa enacted, that the judges of the court of appeals
should perform the duty of circuit judges. This law
the judges refused to execute as unconstitutional, and
agreed unanimously (Edmund Pendleton, George
Wythe, John Blair, Paul Carrington, Peter Lyons,
William Fleming, Hennr Tazewell, Richard Gary,
James Henry, and John Tyler, being present,) on a re-
monstrance, from which will be extracted such parts as
are deemed applicable to the present inquiry."
** In deciding the act, the judges declare that .the
Constitution and the act are in opposition, and cannot
exist together ; and that the former must control the
operation of the latter."
<* The propriety and necessity of the independence
of the judges is evident in reason and the nature of
the office ; since they are to decide between govern-
ment and the people, as well as between contending
citizens ; and if they be dependent on either, corrupt
influence may be apprehended, sacrificing the innocent
to popular prejudice, and subjecting the poor to oppres-
sion and persecution by the rich : and this applies more
forcibly to exclude dependence on the Legislature, a
branch of which, in cases of impeachment, is itself a
party."
" The people, continues the Gourt of Appeals, * have,
in their form of government, declared that the judges
should hold their offices during good behaviour.' Their
dependence would have been rendered complete by
fixing the quantum of their salaries."
" On a subsequent occasion a contest, not very difler-
ent in principle, arose, in the same State, between the
Legislative and Judidal Departments, in which the
point in controversy was again yielded by the Legisla-
ture."
** In 1794 it was enacted that the judges of the dis-
trict courts, who are also judges of the general court,
should so far exerdse chancery jurisdiction as to grant
injunctions to their own judgments, and decree finaUy,
in cases of an equitable nature, which originated by
way of injunction.
" It will be recollected, that by the Constitution of
Virginia, the two Houses of Assembly, * by joint ballot
appoint judges of the supreme court of appeals and
general court, judges in chancery,* dec.
^* Under the act just stated, an application was made
to the district court at Dumfries for an injunction, which
was referred to the general court, and, on solemn con-
sideration, was unanimously rejected, on the principle
that the law was unconstitotional. In giving their
opinions, some of the judges stated reasons entirely
applicable to the subject we are now considering.
<* Judge Roane observed, * Though a judge is inter*
ested privately in preserving his independence, yet it t»
the right of the people which should goyem him ; who,
in their sovereign character, have provided that the
judges should be independent : so that, in fact, it is a
controversy between Uie Legislature and the people,
though perhaps the judges may be privately interested^
** If there can be judges in chancery, who have, on
commission, during good behaviour, their tenure in
office is absolutely at the will of the Legislature, and
they consequently are not independent. The people
of Virginia intended that the Judiciary should be inde-
pendent of the other departments. They are to iudge
where the Legislature is a party, and therefore should
be independent of it ; otherwise they might judge cor-
ruptly in order to please the Legislature, and be con-
sequently continued in office. It is sn acknowledged
principle in all countries that no man shall be judge in
his own cause ; but it is nearly the same thing where
the tribunal of justice is under the influence of a party.
If the Legislature can transfer from Gonstitutional to*
Legislative courts, all judicial powers, these dependent
tribunals, being the creatures of the Legislature itself,
will not dare to oppose sn unconstitutional law."
'* Judge Tyler. — The Gonstitution says, that 'judges-
in chancery shall bo appointed by joint ballot of both
Houses of Assembly, and commissioned by the Gov-
ernor during good behaviour ;' and for the most valua-
ble purpose — to secure the * independence of the Judi-
ciary.' Gontrary to this express direction, which ad-
mits of no doubt, implication, or nice construction, that
bane to political freedom, the Legislature, has made the
appointment by an act mandatory to the judges, leav-
ing them not at liberty to accept or refuse the office
conferred, which is a right every citizen enjoys in every
other case ; a right too sacred to be yielded to any
power on earth ; but were I willing to do it, as relatea
to myself, as a judge I ought not, because it would frus-
trate that important object beforementioned, intended
by the Gonstitution to be kept sacred, for the wisest
and best of purposes : to wit, that justice and the law
be done to all manner of persons, without fear or re-
ward. For how would the right of individuals stand
when brought in contest with the public, or even an
influential character, if the judges may be removed
from office by the same power which appointed them,
to wit, by a statute appointment, as in this case, and
by a statute disappointment, as was the case in the
courts of appeals 1 Might not danger be apprehended
from this source when friture times shall be more cor-^
rupt 1" " Let me now compare the law with the Gon-
stitution in another point ; that of the want of a com-
mission during good behaviour, and the reasons wilt
667
HISTORY OF CONGRESS.
568
H. OP R.
Judiciary System,
February, 1802.
folly and forcibly apply. When I receive the commis-
sion I see the ground on which I stand ; I see that my
own integrity is that ground, and no opinions but such
as are derived from base motives can be sufficient to
remove me from office ; in which case, whensoever an
appeal is made to me by an injured citizen, I will do
him justice as far as my mental powers will enable me
to discover it, without any apprehensions of an unjust
attack."'
" Judge Tucker, in a very elaborate opinion, which
will do credit to his talents so long as it shall be read,
thus expressed himself:
" The independence of the Judiciary results from the
tenure of their office, which the Constitution declares
shall be during good behaviour. The offices which
they are to fill must therefore be permanent as the Con-
stitution itself, and not liable to be discontinued or an-
nihilated by any other branch of the Government.
Hence the Constitution has provided that the Judiciary
^iepartment should be arranged in such a manner as
not to be subject to Legislative control. The court of
appeals, court of chancery, and a general court, are
tribunals expressly required by it ; and in these courts
the Judiciary power is either immediately or ultimately
vested.
" These courts can neither be annihilated nor discon-
tinued by any Legislative act, nor can the judges of
them be removed from their office for any cause except
a breach of their good behaviour."
'* But if the Legislature might at any time discon-
tinue or annihilate either of these courts, it is plain that
their tenure of office might be changed, since a judge,
without any breach of good behaviour, might in effect
be removed from office by annihilating or discontinuing
the office itself."
Mr. Morris then proceeded : I have stated
these opinions at full length, because I conceive
that they determine every principle that we are
contending for. We find, sir, the ablest judges
who have graced the bench of Virginia, deliber-
ately declaring acts of the Legislature of that
State unconstitutional. We find them contending
for, and maintaining their independence against
all legislative attempts to lessen or destroy it. We
find them claiming this independence from the
words of a Constitution, which declares that they
shall be commissioned during good behaviour.
We find, also, that in a contest on this subject be-
tween the Legislature and the Judiciary, that the
latter prevailed ; from whence we have a right to
infer, that the public sentiment was with the
judges. Why then, Mr. Chairman, are most of
the gentlemen who represent that State, anxious
to divest the General Government of a privilege
80 highly valued in their own State ? Is the inde-
pendence of the national Judiciary of less import-
ance than that of Virginia ? I trust it is not. A
State Judiciary, according to the opinion of the
Virginia judges, has to protect a citizen against
the Government as well as to decide between cit-
izen and citizen. What have the national tribu-
nals to do ? Why, sir, they have not only to protect
stitution has vested your Judiciary with powers
independent of other departments of the Govern-
ment, that it may effectually interpose between
the meanest of your citizens and secure them
against the oppression either of an arbitrary Le-
gislature or a tyrannical Executive.
Sir. previous to the commitment of this bill,
when an incidental question arose on it in the
House, an honorable gentleman from Virginia
(^Mr. Randolph) spoke of the present as a very
tavorable moment for us to determine this great
Constitutional question. An honorable gentle-
man from Kentucky has this day expressed the
same sentiment. Sir, I cannot agree with either
of these honorable gentlemen. I believe that this
is of all moments the most unfortunate forsocha
determination. I believe so, because such hare
been the fatal efi*ects of Executive persecacion^
that it has wrought up party.spirit to its highest
pitch of irritation. [Here there was a cry of order
from difierent parts of the House.]
Mr. Morris observed that he did not mean to
say anything that was disorderly, but that having
occasion to allude to the present state of irrita-
tion of the nublic mind, he could not help attribut-
ing it to what he believed to be the true cause of
it. Mr. M. then proceeded : Sir, I am incapable of
attributing to a majority of this House a settled
determination of violating the Constitution of
their country, but I do believe that if they act
from the impulse of the present moment, that
valuable instrument will be sacrificed at the altar
of resentment. And how can this belief be resist-
ed, when you hear so respectable a gentleman as
the honorable member from Kentucky so far get
the better of his usual discretion as to permit him-
self to say in his place, that with the public senti-
ment judges and other officers ought to be changed,
and that he would vote for the bill because in no
other way can judges be driven from their posts?
Str, such a sentiment expressed on the floor of thi^
House, is of itself convincing, that gentlemen are
not in a state of mind to examine this subject
coolly and dispassionately, and therefore I most
repeat again, that it is the most unfortunate of
all moments for its discussion.
The further consideration of the bill was then
postponed till to-morrow.
Thursday, February 18.
Memorials of sundry inhabitants of the city and
county of Philadelphia, in the State of Pennsyl-
vania, whose names are thereunto subscribed, were
presented to the House and read, respectively pray-
ing a repeal of the act of Congress, passed on the
thirteenth of, Februarv. one thousand eight hun-
dred and one entitled "An act to provide for the
more convenient organization of the Courts of
the United States."— Referred.
Mr. S. Smith, from the Committee of Com-
merce and Manufactures, to whom was referred a
resolution of this House of the twenty-ninth ulti-
mo, presented a bill for the accommodation of per-
between a Slate and the General Government. I sons concerned in certain fisheries therein men-
"These are the great purposes for which your Con- J tioned j which was read twice and committed to
569
Fkbrcart, 1802.
HISTORY OF CONGRESS.
570
Judiciary System.
H. OP R.
a Committee of the Whole House oq Monday
next.
A Message was received from the President
of the United States, transmitting a letter from
the Secretary of War on the subject of certain
lands in the neighborhood of our military posts,
on which it might be expedient for the Legislature
to make some provisions. A letter was also re-
ceived from the Governor of Indiana, on the same
subject. The said Message and letter were read,
and ordered to lie on the table.
THE JUDICIARY BILL.
The House affain resolved itself into a Commit-
tee of the Whole House on the bill sent from the
Senate, entitled "An act to repeal certain acts re-
specting the organization of the Courts of the Uni-
ted States and for other purposes."
Mr. Stanley. — ^Mr. Chairman, the impression
I feel of the importance of the question at present
before us, would alone induce me to assign the
reasons of the vote which I shall give ; but, sir,
I am urged by another strong reason to justify
that vote. The Legislature of the State of North
Carolina, a part of which I have the honor to
represent, has thought proper to recommend to
her Representatives on this floor, to use their en-
deavors to effect the measure contemplated by the
bill on your table for the repeal of tne act of the
last Congress, entitled ^ An act for the more con-
venient organization of the Courts of the United
States." Holding myself responsible to my con-
stituents for the vote which 1 shall give on this,
as on every other question, I cannot admit the
right of any other authority, however respectable,
to control, or in any manner to influence my con-
duct. The high respect I feel, and which is just-
ly due to the honorable body which has made this
recommendation, has induced me to review, with
deliberation and caution, the opinion I had formed,
and (hough it is painful to differ from those ^hom
I esteem, yet my duty to my constituents com-
pels me to do so in this instance. I owe. also, a
duly to myself, to give no vote which my con-
science and my understanding do not approve.
Every measure which is brought under the con-
sideration of a Legislature must first be tested
by its expediency. Unhappily, in the present in-
stance, another question arises — its constitutional-
ity. ' I will endeavor, concisely, to examine the
subject on both those points. And, first, as to the
expediency of ths measure. In order to form a
correct estimate between the present Judiciary
system of the courts of the United States and that
for which it was substituted, it is proper to take
a comparative view of both.
Under the former system, there were six judges
of the Supreme Court of the United States, wno
held two sessions of the Supreme Court in each
year, at the seat of Government. Those judges
also held in each State a circuit court, two terms
in each year, in which the judge of the district
was associated with the circuit judge. The or-
ganization of the district courts having jurisdic-
tion, principally, of matters affecting the revenue
and admiralty causes, not being connected with
the present question, need not be examined. From
the errors of this system resulted, first, a delay of
justice. The judges bound to hold courts in suc-
cession at remote parts of the continent, were
continually travelling; from the variety of acci-
dents to which travellers are subjected in this
country, from the condition of roads and over-
flowing of rivers, it frequently happened that the
judges failed in their attempts to get to the courts,
or arrived so late that little business was done.
Suitors, jurors, and witnesses, were subjected to
the trouble and expense of attending courts with-
out the accomplishment of their business ; hence
resulted a delay of justice. In the State to which
I belong, during the few years existence of the
former system, this was the case frequently.
Another great evil resulting from that system
was, its tendency to lessen the character and re-
spectability of the Federal bench. Those best
acquainted with the profession of the law will
most readily admit, that even a life of patient
study is unequal to the complete attainment of
principles and rules; and that much labor and
industry are necessary to preserve that which is
gained. Consequently, that extent of legal knowl-
edge, correctness of judgment, and respectability
of character, which should designate the persons
qualified for this important trust were seldom to
be found, but in men far advanced in years. Men
possessing these qualifications, not inured to labor,
are seldom equal to the fatigue of their duty ; or,
if at the time of appointment, fast approaching to
the infirmities of age, were not to be expected to
relinquish the enjoyments of private lite for an
office, which, however honorable, subjected them
to the fatigue of a day laborer. The office, with
its incumbrances, was, as it were, offered to the
lowest bidder. And men best qualified to honor
the bench, were driven from it. True it is, men
have been found eminently uniting virtue and
talents, who have accepted the office under all its
distressing circumstances, but we owe this rather
to their patriotism than to the advantages of the
situation. Let it also be remembered that, in some
instances, gentlemen who would have adorned
the seat of justice of any country, were compelled
to relinquish their seats ; and in others, refused to
accept the appointment.
Another error of that system was, that the
judges of the Supreme Court, the court in the
last resort, before whom the errors of the inferior
circuit courts were to be corrected, were the same
men who presided in those circuit courts. With
great deference for the opinions of gentlenien who
prefer that system, I pronounce my opinion, that
Its errors were radical ; that those who justly es-
timated the importance to our interest and nation-
al character, of a speedy and correct administra-
tion of justice, ought to have desired a change.
The present system has happily obviated these
errors. The States are divided mto six circuits ;
in each State is appointed one judge, called a cir-
cuit judge ; the judges of the States, composing
one circuit, ride together into the States of their
circuit, and together hold the court. The much
smaller distance which those judges have to travel
571
HISTORY OP CONGRESS.
572
H. OP R.
Judiciary System.
February. 1802
than the circuit judges, under the former system,
secures their due attendance ; a portion oi their
time is left them to study and reflection, and the
same persons presiding at succebsive terms, a uni-
formity of decision is preserved. The six former
judges hold the Supreme Court, with original
Constitutional jurisdiction in matters of the ut-
most national importance, and appellate jurisdic-
tion, in certain cases, where the sum in dispute is
two thousand dollars ; they are also the court in
which the errors of the circuit court are examined
and corrected.
If, sir, the organization of the circuit courts
could have been improved by a system preferable
to the present, it is my misfortune not yet to have
heard of it. I will now, sir, examine the objec-
tions which are urged against the present system,
and the gentleman from Kentucky (Mr. Davis)
must pardon me, if. in doing so, I notice some not
yet advanced on tnis floor; which, though he is
pleased to term " shadows," have yet been imposed
on the American people for substance. The hon-
orable member from Virginia (Mr. Thompson)
has charged this system with a great increase of
expense.' What, sir, is the amount of this increase
of expense ? The estimate from the Treasury
Department informs us that the salaries of the
judges created under the act of last Congress, and
the addition made to the salaries of the judges of
Tennessee, Kentucky, and Northwest Territory,
amount to thirty-two thousand dollars. Some
contingent expenses are necessary, which cannot
be estimated at more than ei^ht thousand dollars ;
making, together, the sum ol forty thousand dol-
lars; a sum which, when compared with the mag-
nitude of the object, or the vast revenue and re-
sources of the country, becomes an atom, the dust
of the balance. But, sir, permit me to ask, when
was it discovered that the people of America were
so sordid as to consider their ^old their chief
good? I had believed, sir, they justly estimated
it the instrument by wnich their good might be
promoted. When we took the field for independ-
ence, did any cool calculator estimate the cost?
Is our Republican Grovernment, founded on, and
guaranteeing, the equal rights of man, preferred,
because of its cheapness ? No, sir ; with the hon-
est pride of an American, I reply, they act from
nobler motives. If the purpose on which the
money is bestowed be necessary, the people ought
to submit to the expense ; for an improvement in
so valuable an institution as the Judiciary, by
which the weak and the poor are protected against
the great and the opulent, the people will sub-
mit to IL
The President has laid before us a document,
exhibiting the business which has been decided in
the Federal courts, with a statement of what was
pending when this document was taken. I shall
say notning further of the errors which have been
detected in this document, than that I do not at-
tribute them to the Executive; as he received it,
I presume, he submitted it to us. But, sir, I can-
not but express my admiration of the novelty, if
not the solidity of the argument, founded on this
document, that courts are necessary and useful, in
proportion to the quantity of business before them.
Can gentlemen believe that because, at the time
of taking these statements, there was less business
than there had been before, that, therefore, liti-
gation would decline ; that nothing would exist
but peace and good will among men? If this is
not believed ; if commerce will continue, and
passion rule us, so long will there be litigation, so
long will there be a necessity for courts; their
existence will be beneficial, though without busi-
ness ; they show to the citizens and to the world,
that we are prepared to punish crimes and admin-
ister justice ; and it becomes our doty to establish
that system which shall best promote the great
objects of a speedy and correct administration of
justice. The argument drawn from this docu-
ment is fallacious on another ground ; the i»ucity
of suits is owing, not to the want of litigation on
questions within Federal jurisdiction, but because
of the erroneous organization of the courts under
the former system, suitors were driven into the
State courts.
The same honorable member from Virginia,
has told us the former courts were suflicieni ; and.
to establish his point, has adduced evidence from
that respectable State, the Ancient Dominion ; the
gentleman tells us that, in that State, one vener-
able man has the whole extensive chancery juris-
diction of the State, the docket of which contains
2,600 causes. Witnout inquiring what portion of
this multitude of business the judge is able to per-
form, I do not hesitate to say, the Tact can have no
weight, in establishing the gentleman's argument.
We did not complain, sir, mat, under the former
svstem, the judges had too extensive a jurisdic-
tion, nor that there was a multitude of causes ; but
that the discharge of their duty, however limited
their jurisdiction, however few the causes, com-
pelled them to a perpetual travelling, leaving them
no time for study, and subjecting the courts to
delays though their jurisdiction had been limited
to one species of action only,. and the busine^ in
court reduced to a single cause, the labor and un-
certainty of travelling from New Hampshire to
Georgia was still the same.
It is objected against the act proposed to be re-
pealed, that a dangerous patronage is created by
It for the President. I shall pass over what I con-
sider an inconsistency in this objection coming
from gentlemen who profess that implicit confi-
dence is due to the man chosen by the people,
who, in his appointments, speaks not less the voice
of the people than the voice of God, and examine
the weight of the objection. If this apprehended
patronage means the power of appointing the Ju-
diciary, that power is given by tne Constitution,
and is the same, whether the power of the Judi-
ciary be vested in six or in sixteen judges. If ii
fear an undue control over the people in favor of
the Executive, through the Judiciary, make the
judges as independent as we contend they are and
ought to be. and they are placed beyond the neces-
sity of descending to the practice of improper
means to preserve Executive favor.
We have been told, sir, that it is necessary the
judges should ride into the States to gain a knowl-
573
HISTORY OF CONGRESS.
574
February, 1802.
Judiciary System.
H. ofR.
edge of the laws by which, in many cases, they
are to decide. Until this occasion I have never
heard that the laws of a country could onlv be
acquired in the atmosphere of that country wnere
they are in force. Nine-tenths of the decisions in
our State courts and Federal courts turn on ques-
tions of common law ; yet, has it ever been sug-
gested that an American judge was incompetent
to decide on common law questions, because he
had not studied in England f No, sir, the knowl-
edge in both cases may be acquired in the closet.
To these observations permit me to add, that the
remonstrances from the bar of Philadelphia, com-
posed of gentlemen no less celebrated for the
respectability of their private than of their profes-
sional character, who, on this occasion, so inter-
esting to the welfare of their country, have sacri-
ficed their political prejudices, strongly expressing
their decided preference of the present system to
the former, is, to mv mind, conclusive, that it
ought to be preferrea. I am, therefore, of opin-
ion, that it is inexpedient to pass the present re-
pealing bill; and so long as my opinion is sup-
ported by the respectable authority I have just
alluded to, and opposed only by the objections
which I have noticed, I shall feel satisfied that
opinion is correct.
In approaching the second question which I
proposed to examine — the constitutionality of the
measure — whether I reflect on the magnitude of
the question on the one hand, or my inability on
the other, I am, indeed, humbled .before the under-
taking.
Without examining whether Government, ac-
cording to the modern opinion, should be founded
on the rea.son and sense of justice of man, it is
certain our Government is calculated to guard
against his weakness and his wickedness. Our
Government has been particularly cautious on
this subject 3 it has left nothing to the hazard of
reason or sense of justice ; it has carefully dele-
gated powers to three distinct departments, and
separated these departments by boundaries plain-
ly marked and formed, each so as not to control,
at least to check, the other. The Legislative
powers, though vested in men chosen frequently
and by the people themselves in one branch, and
by the immediate agents of the people in the other,
are nevertheless the object of suspicion and cau-
tion. Their powers, far from resting on their dis-
cretion or sense of expediency, are expressly^ and
cautiously limited. The Executive conditional
veto forms one check on the Legislature ; the Ju-
diciary, I shall contend, are a check on both.
Here, permit me to say, that from the spirit and
the words of our Constitution, I infer that the Ju-
diciary are a co-ordinate department with the
Kxecutive and Legislative. The framers of our
Constitution, satisfied that the powers of well or-
ganized Governments ought to be divided into
three branches — Legislative, Executive, and Ju-
dicial— have nowhere expressly declared there
shall be such departments, but. alter premising the
objects of the Government, proceed to ordain now
the Legislature shall be composed; and article
two, section two, declares, "The power shall be
^ vested in a President of the United States of
^ America; he shall hold his office during the term
* of four years," and prescribes the mode of elec-
tion. Article three, section one, also declares, '^ The
' Judicial power of the United Stales shall be vest-
* ed in one Supreme Court and in such inferior
^ courts as the Congress may from time to time
^ ordain and establisn^" and tne judges of the su-
preme and inferior courts shall hold, dec, during
good behaviour. By comparing these sections of
the Constitution, it appears the Judiciary and the
Executive are ex])re&sly created by the Constitu-
tion, and nothing is left to the discretion of Con-
gress, as to the existence of these departments ;
they are created by the same words ; and if the
Legislature claim a right to put down the Judi-
ciary at pleasure, before the happening of that
event till which the Constitution secures their
offices — their misbehaviour — they may as well
assume the right to remove the President before
the happening of that event till which bis office
is secured, to wit, the expiration of four years.
I shall attempt to establish as a first principle,
that the Judiciary are a check on the Legislature,
and thence to show first, that, by the spirit of our
Constitution, the Judiciary ought to be independ-
ent, beyond the control or influence of either oi
the other departments of power ; and, secondly,
that, by the words of the Constitution, they are
80 secured.
First, then, that the Judiciary are a check on
the Legislature. In the Constitution, we find cer-
tain powers delegated to Congress ; we also find
they are prohibited from exercising certain pow-
ers; among which are, they shall pass no ex po$t
facto law, no bill of attainder, no law respecting
religion, dbc. Should, unhappily, a Legislature
be found who. from weakness or wickedness, or
the union of noth, should transgress the bounds
prescribed, what is the security of the citizen 1
After all the experience derived from the exam-
ple of other Governments, after all the delibera-
tion and wisdom of our sages who framed the
Constitution, are we left, in this important in-
stance, as under the despotism of a monarch, to
seek redress through the throes and convulsions
of a revolution ? No, sir. The Judiciary are our
security. The Legislature may enact penalties,
and denounce punishments against those who do
not yield obedience to their unconstitutional acts;
their penalties cannot be exacted, nor punishments
inflicted, without the judgment of a court. The
judges are to expound the law, and that funda-
mental, paramount law, the Constitution. To
this purpose they are sworn to support the Con-
stitution. While the Judiciary firmly, independ-
ently, and uprightly, discharge their duty and de-
clare the act of the Legislature contrary to the
Constitution, to be void, the Legislature are check-
ed, and the citizen shielded from oppression and
persecution. But, ask gentlemen whence do the
courts derive this power, and the honorable gen-
tleman from Virginia, (Mr. Thompson) says, we
are contending for this common law doctrine,
that the courts are a check on the Legislature.
If I misunderstood the gentleman, I trust he will
575
HISTORY OF CONGRESS.
576
H. OF R.
Judiciary System,
Febrdart, 1802.
correct me. Sir, that gentleman, I am willing to
presume, knows, what I assure him no gentleman
with whom on this occasion I act, is ignorant of.
that this is not a common law doctrine ; that in
England their courts have no check on the Leo^is-
lature — their Parliament are emphatically styled
omnipotent, and if they violate the few natural
rights that remain to tne citizens, they have no
remedy but in a resort to revolutionary princi-
ples ; It was the want of this check to the oppres-
sions of their rulers, which has produced civil
wars, and driven one monarch from his kingdom,
and sent another to the scaffold. This power ex-
ists in no other Government, because under
no other Government does there exist a Le-
gislature with limited powers; under our Gov-
ernment it is the very essence, the constitution of
a court, the oath enjoined on them to support the
Constitution. The exercise and the admission of
this right are not new in America; instances
must be in the recollection of every gentleman.
I will cite a few most prominent : Tne honorable
member (Mr. Thompson) has been pleased to
call the attention of the Committee to the exam-
ples drawn from his State ; I beg leave to profit
from the same source. In 1787, the Legislature
of th:it State passed an act making new arrange-
ments in the jurisdiction of the courts. The
judges, among whom was that venerable gentle-
man mentioned bv the member from that State,
whose merits and worth command the sincere
homage of my respects, protested against this act,
and refused to carry it into efiect; the Legisla-
ture acquiesced, and the law was repealed.
Upon the imposition of the carriage tax by
Congress, a citizen of Virginia refused to pay the
tax, on the ground that it was unconstitutionally
laid. He was sued for the penalty in the circuit
court of that State, from whence, by writ of error,
the suit came before the Supreme Court ; in this
case the defendant relied solely on the unconsti-
tutionality of the act of Congress, and on this
ground was defended by the attorney general of
the State of Virginia, and the attornev general of
the State of Pennsylvania. At this time, then, it
appears that these learned gentlemen, the judges,
and the citizens, thought the court competent to
relieve in case the law was judged to be uncon-
stitutional. In 1792, Congress passed an act im-
posing certain duties respecting invalid pension-
ers, upon the judges of the circuit court. The
judges, at the first court after this act, protested
againt it ; their protests were transmitted to the
President of the United States— that President
who had presided in the General Convention
which framed the Constitution, and. therefore, as
likely to understand the powers of Congress on
the judiciary as any other man, so far sanctioned
their opinions as to transmit them to the next
Congress, where the act was reconsidered and re-
pealed. I beg leave, also, to allude to the author-
ity before mentioned, by my friend from Penn-
sylvania, (Mr. Hemphill,) which I should think
of some weight here. It is the opinion of a gen-
tleman, venerable for his age, respectable for lesal
knowledge, and distinguished lor what, in Uie
fashionable language of the dav, are teraied re-
publican principles. I mean the Executive of
Pennsylvania; that gentleman, in assigning to the
Legislature of his State his reasons for not ap-
proving an act they had laid before him, after ex-
pressing his doubts of the constitutionality of the
act, declares, " he cannot, from a confidence in
^ the legal knowledge, integrity, and fortitude of
' his former brethren in the Supreme Court, risk
^ his character in a judicial decision on this ques-
* tion, when he does not see any advantage to be
' derived to his country from a possibility of sue-
^ cess." If any words can make more plain the
opinion here conveyed, it is that he considers the
judges have the power and will exercise it, to de-
clare the act unconstitutional.
To my mind, these considerations are satisfac-
tory, that, from the very constitution of our courts,
from the practice and admission of our State
courts and State Legislatures, and Federal courts,
and Federal Legislature, that the judges of the
United States, sitting in court, have the power, and
by oath are bound to pronounce, that an act con-
trary to the Constitution, is void. From the es-
tablishment of this proposition, that the judges
are the expounders of the Constitution, and the
laws made under it, and that they are thereby a
check on the Legislature, I shall infer that, by the
spirit of our Constitution, they ought to be inde-
pendent of the other branches of Grovernment. bot
particularly so of the Legislature. The concen-
trating the branches of power either £xecutire
and Legislative, or Legislative and Judiciary, in
the same hands, is the very essence of tyranny;
in proportion as we advance towards the union of
those powers, in the same proportion do ipve re-
cede from liberty. Are these departments sepa-
rate, unconnected — if the Legislature by any means
procure their will either directly or indirectly, to
be substituted for or to overrule judicial judg-
ment? Whether the Legislature expound and
adjudge their acts themselves, or submit them to
the exposition and judgment of a judiciary sub-
servient to them, is essentially the same. If the
Legislature exercise the power of removal from
office by the direct means of a vote of remoTat
or by the indirect means, the legislative legerde-
main of a repealing act, is precisely the same
thing, the ju tges are no longer independent, but
dependent on the Legislature for their offices, and
subject to their control; a consequence entirely
repugnant to the spirit of our Constitution. I
shall attempt to show, that by the words of our
Constitution, the judges are placed beyond Lecrii*
lative control. Article three, section one : " The
^judges, both of the supreme and inferior courts.
' shall hold their offices during good behaviour.
' and shall, at stated times, receive for their ser-
^ vices a compensation which shall not be dimin-
^ ished during their continuance in office." Until
the contemplation of the present measure, I incline
to believe, it never entered the mind of any man
acquainted with this clause of the Constitution,
that judges should be removed otherwise than by
impeachment for misdemeanor. The advocates
for this Legislative power contend that the tenure
577
HISTORY OF CONGRESS.
578
1-
February, 1802.
Judiciary System.
H. opR.
of "good behaviour" in this article of the Consti-
tutioD is intended to restrict Executive and not
Legislative power. It does not appear probable
that an express restriction should be introduced
against a power which is nowhere expressly grant-
ed; for gentlemen know that the Executive power
of removal from office is a power admitted from
construction, and not founded on anything drawn
from the Constitution. I say this rather, because,
by the Constitution, the aid of the Senate is ne-
cessary to appoint, and a fortiori should be neces-
sary to remove. It is important to ascertain what
was the intention of the framers of the Constitu-
tion in introducing the words " good behaviour.''
The most correct source in our power from which
this aid may be derived, is the .writing and opin-
ions at that day of those who aided m the great
w^ork. Among those publications which were
written for the purpose of explaining and recom-
mending this Constitution, the most celebrated
are those pieces over the signature of "Publius."
written by the pens of gentlemen of leading in-
fluence in the Convention, and whose talents and
patriotism are still honored by the nation. In
that part of this work which treats of the tenure
of the office of judge during "good behaviour," I
find this strong expression :
'^ The standard of good behaviour for the continu-
ance in office of the judicial magistracy, is certainly
one of the most valuable of the modem improvements
in the practice of Government In a monarchy, it is
an excellent barrier to the despotism of the prince. In
a republic, it is a no less excellent barrier to the en-
croachments and oppressions of the representative
body."
This, sir, to my mind, is conclusive, that the
Convention intended this tenure as a restriction
no less on Legislative than on Executive power,
and that, in this sense of the phrase, the people of
America received this part of the Constitution.
Id ascertaining the import of the words " during
good behaviour," it is certainly important to in- '
quire the end to which they have been used in
other similar cases. My colleague (Mr. Hender-
son) has. with much abler talents, shown that.
in mos: of the State constitutions, which existea
before our Federal Constitution, these words are
used to fix the tenure of offices where the Execu-
tive have neither express nor constructiva power
of removal ; consequently, they^ are in those con-
stitutions restrictive of the Legislative power. If
then, the framers of our Constitution borrowea
this tenure from these State constitutions, it is
fair and reasonable to conclude they used them in
the sense in which they were previousljr received.
Sut, says my colleague on the other side of the
House, (Mr. Robert Williams,) the judges in
Iilogland hold their offices by the tenure of " ^ood
behaviour," and yet are removable on an address
from both Houses of Parliament, and he infers
that the terms ma^r have been taken from Eng-
land. To this I will first observe, that no fair ar-
giiment can be drawn from the existence of this
Legislative power there, for the exercise here.
The mode of appointment there may render such
control over the Executive necessary, which, from
7th Coir.— 15
the provisions of our Constitution, are not wanted
here. In England, the King has the sole power
of appointment — the people have no previous
check. In this country, tne Executive appoint-
ment is checked by the requisite sanction of the
Senate. But is this Legislative power in Great
Britain usurped by construction 7 No, if the gen-
tleman will read again the statute of 13 William
III., he will find that this power of removal is ex-
pressly granted bjr the Crown to Parliament. If,
then, one convention had this statute before them,
in adopting that part which relates to the tenure
of office, and omitting that part which gives the
power of removal, it is not to be presumed they
intended so important a powbr should depend on
construction. The same gentleman (Mr. Rob-
ert Williams) also contended that it could not
be presumed the Convention intended to restrict
the power of the Representatives of the people,
the iriends of the people. What will the gentle-
man say of the correctness of his opinion, when I
remind him that our powers are all expressly re-
stricted j that the same article which fixes the
tenure of ^* good behaviour," expressly and un-
doubtedly guards against the power of the Repre-
sentatives of the people, the friends of the people,
by securing the salaries of the judjges undiminish-
ed during tneir continuance in office.
But, as strong an argument as can be used
against this constructive Legislative power, is the
evils which may result from the exercise of it.
Popular assemblies are as much under the domi-
nance of passion as individuals; they feel as sen-
sibly and resent as malignantly. He who has
not made this observation is t stranger to what
has passed in all popular governments ; and I am
sorry to add, A stranger to what has so lately
passed in this countr]^. By the exercise of this
power, firm, upright judges, men of unbending
virtue, are to be removed upon every change of
administration, to make way for more pliant min-
ions, the humble instruments of the I^egislature.
The bulwark of our liberties against Legislative
encroachment, the independence and purity of
our Judiciary, is tumbled into'ruins. and the rights-
of millions are crushed by its fall. The sacred
altar of justice is polluted, the sword of justice
becomes the rod ot oppression. On the other
hand, what danger is to be apprehended from that
independence of the judges for which the friends
of the Constitution contend? Not that bad and cor-
rupt men will be fastened on us. No. the Con-
stitution provides for their removal by impeach-
ment. Not that they will viciously oppose the
Constitutional acts of the Legislature. No, the
Legislature are a check upon them by the mode
of impeachment, in which the House is the ac-
cuser and th^ Senate the judge. If the judge be
corrupt, if he misdemean himself, he may be re-
moved. If he continue pure and upright, he
ought not to be removed ; no earthly power, but
the mighty hand of the people, whicn lormed the
Constitution and can destroy it, can legally re-
move him. Should this measure be adopted, and
the independence of our Judiciary destroyed ;
should the administration of our Government un-
§79
HISTORY OP CONGRESS.
580
H. OF R.
Judiciary System,
February, 1802.
fortuoately pass into the hands of men who feel
power ana forget right, our Constitution becomes
indeed '*a Lilliputian tie;" and this measure will
be the first link in that chain of measures which
will add the name of America to the melancholy
catalogue of fallen Republics.
Mr. Giles said that he felt some degree of ap-
prehension, that, in the course he deemed it neces-
sary to take in the discussion of this question,
Eome observations might fall from him which
might not be in strict harmony with the feelings
of some gentlemen of the committee. He should
regret, however, if a compliance ^vith a sense of
duty should produce that effect. He said, there-
fore, that he wished to apprize gentlemen, that he
intended to direct his observations as much as
possible to the effects and tendencies of measures ;
and that when he was constrained to speak of the
views of gentlemen, it would be with respect to
what he conceived to be their opinions in relation
to the general interests, and not to private gratifi-
cations. He said it was natural that men should
differ in the choice of means to produce a Kiven
end, and more natural that they should differ in
the choice of political means than any other; be-
cause the subject presented more complicated and
variable objects, out of which to make a choice.
Accordingly, a great portion of the human mind
has been at all times directed towards monarchy,
as the best form of government to enforce obedi-
ence and insure the general happiness; whereas
another portion of the human mind has given a
fireference to the republican form, as best calcu-
ated to produce the same end ; and there is no
reason for applying improper motives to individ-
uals who should give a preference to either of the
Principles, provided in doing so they follow the
oaest dictates of their own judgments. It must
be obvious to the most common observer, that,
from the commencement of the Government of
the United States, and perhaps before it, a differ-
ence of opinion existed among the citizens, having
more or less reference to these two extreme fun-
damental points, and that it manifested itself in
the modification or administration of the Govern-
ment as soon as it was put in operation. On one
side, it was contended, that in the organization of
the Constitution a due apportionment of authority
had not been made among the several depart-
ments; that the Legislature was too powerful for
the Executive department ; and to create and pre-
serve a proper equipoise, it was necessary to in-
fuse into the Executive department, by legislation,
all artificial powers compatible with the Consti-
tution, upon which the most diffusive construction
was given ; or, in other words, to place in Execu-
tive hands all the patronage it was possible to
create, for the purpose of protecting the President
against the full force of his Constitutional respon-
sibility to the people. On the other side, it was
contended, (hat the doctrine of patronage was re-
pugnant to the opinions and feelings of the peo-
ple; that it was unnecessary, expensive, and op-
pressive, and that the highest energy the Govern-
ment could possess, would flow from the confi-
dence of the mass of the people, founded upon
their own sense of their common interests. Hence,
what is called party in the United States, grew
up from a division of opinion respecting the2!»e two
great characteristic principles. Patronage, or the
creation of partial interest for the protection and
support of Government, on the one side: On the
other side, to effect the same end, a fair responsi-
bility of all representatives to the people; an ad-
herence to the general interests, and a reliance oa
the confidence of the people at large, resulting
from a sense of their com mon interests. A rariety
of circumstances existed in the United States, at
the commencement of the Government, and a
great number of favorable incidents continued
afterwards to arise, which gave the patronage
system the preponderancy, during the first three
Presidential terms of election; notwithstanding
it was evident, that the system was adopted and
pursued in direct hostility to the feelings and
opinions of a great portion of the American peo-
ple. The Government was ushered into opera-
tion under a vast excitement of federal fervor,
flowing from its recent triumph on the question
of adopting the Constitution. At that time a con-
siderable debt was afloat in the United State:^.
which had grown out of the Revolutionary war.
This debt was of two kinds: the debt proper of
the United States, or ens^agements made by the
United States in their federal capacity ; the other,
the Slate debts, or e'n^gements entered into bf
the respective States for the support of the com-
mon cause.
The favorers of the patronage system readily
availed themselves of these materials for erecting
a moneyed interest ; gave to it a stability, or quali-
fied perpetuity, and calculated upon its certain
support m all their measures of irresponsibility.
This was done not only by funding the debt
proper of the United States, but by assuming the
payment of the State debts, and funding them
also; and it is believed, extending the assumption
beyond the actual engagements of the States.
Hence the Federal axiom, that a public debt is a
public blessing. Shortly after this event, an Indian
war sprang up — he would not say by what means—
in conseouence of which an army was added to
the list of patronage. The Algerines commenced
a predatory war upon the commerce of the United
Siates/and thence a navy formed a new item of
patronage. Taxes became necessary to meet the
expenses of this system, and an arrangement of
internal taxes, an excise, dbc, still swelled the list
of patronage. But the circumstance which most
favored this system was, the breaking out of a
tremendous and unprecedented war in those coun-
tries of Europe witn which the United Stales bad
the most intimate relations. The feelings and
sympathies of the people of the United States
were so strongly attracted by the tremeodoos
scenes existing there, that they considered their
own internal concerns in a secondary point oi
view. After a variable conduct had been pursued
by the United States in relation to these events.
the depredations committed upon commerce, and
the excitements produced thereby, enabled the
Administration to indulge themselves in a more
681
HISTORY OF CONGRESS.
582
Februart, 1802.
Judiciary System.
H. opR
decisive course, and they at once pushed forward
the people lo the X, Y, Z, of their political alpha-
bet, before they had well learned and understood
the A, B, C, of the principles of the Administra-
tion.
Armies and navies were raised, and a yariety
of other schemes of expense were adopted, whicn
placed the Administration in the embarrassing pre-
dicament, either to violate their faith with their
public creditors, or to resort to new taxes. The
latter alternatiye was preferred, accompanied with
other strong coercive measures to enforce obedi-
ence. A land tex was laid for two millions of dol-
lars. This measure awakened the people to a sense
of their situation ; and shook to the foundation all
those federal ramparts which had. been planned
with so much ingenuity, and erected around the
Executive with so much expense and labor.
Another circumstance peculiarly favorable to the
advocates of Executive patronage was, that during
the two first Presidential terms, the Chief Execu-
tive Magistrate possessed a greater decree of pop-
ularity and the confidence of the people than ever
was, or perhaps will ever be again attached to the
person occupying that dignified station. The gen-
eral disquietude which manifested itself in con-
sequence of these enterprising measures, in the
year 1800, induced the Federal party to apprehend
that they had pushed their principles too far, and
they began to entertain doubts of the result of the
Presidential election, which was approaching.
la this state of things, it was natural for them to
look out for^ome department of the Government
in which they could entrench themselves in the
event of an unsuccessful issue in the election, and
continue to support those favorite principles of
irresponsibility which they could never consent
to abandon.
The Judiciary department, of course, presented
itself as best fitted for their object, not only be-
cause it was already filled with men who had
manifested the most indecorous 2eal in favor of
their principles, but because they held their offices
by indefinite tenures, and of course were further
removed from any responsibility to the people,
than either of the other departments. Accord-
ingly, on the 11th of March 1800, a bill for the
more convenient organization of the courts of the
United States, was presented to the House of
Representatives. This bill appears to have had
for its objects, First, the gradual demolition of the
State courts, by increasing the number and ex-
tending the jurisdiction of the Federal courts.
Second, to afford additional protection to the
principles of the then existing Administration by
creating a new corps of judges of concurring po-
litical opinions. This bill, however, was not
passed into a law during that session of Congress,
perhaps from an Apprehension that it would tend
to increase the disquietudes which other measures
had before excited, and therefore operate unfavor-
ably to the approaching Presidential election. At
the next session, after the result of the late elec-
tion was ascertained, the bill, after having under-
gone some considerable alterations, was passed
into the law now under discussion. This law,
it is now said, is inviolable and irrepealable. It
is said, the independence of the judge will be
thereby immolated. Yes, sir, this law is now
considered as the sanctuary of the principles of
the last Administration, and the tenures of the
judges as the horns of inviolability within that
sanctuary. He said, we are now called upon to
rally round the Constitution as the ark of our
political safety. Gentlemen, discarding all gene-
ralising expressions, and the spirit of the instru-
ment, tie down all construction to the strict letter
of the Constitution. He said, it gave him great
pleasure to meet gentlemen on this ground ; and
the more so, because he had long been in the habit
of bearing very different language from the same
gentlemen. He had long been in the habit of
hearing the same gentlemen speak of the expres-
sions of ^ the common defence and the general
welfare," as the only valuable part of the Consti-
tution ; that they were sufficient to obliterate all
specifications and limitations of power. That
tne Constitution was a mere nose of wax, yield-
ing to every impression it received. That every
*' opening wedge" which was driven into it, was
highly beneficial in severing asunder the limita-
tions and restrictions of power. That the repub-
licanism it secured, meant anything or nothing.
It gave him therefore, great pleasure at this time
to obey the injunctions of gentlemen in rallying
round the Constitution as the ark of our political
safety, and of interpreting it in by the plain and
obvious meanino^ and letter of the specified pow-
ers. But, he said, as if it was always the unfor-
tunate destinv of these gentlemen to be upon ex-
yemes, they nave now got round to the opposite
extreme point of the political compass, and even
beyond it. For, he said, they not only tie down
all construction to the letter of the instrument,
but they tell us that they see, and call upon us also
to^see written therein, m large capital characters,
"the independence of judges;" which, to the
extent they carry the meaning of the term, is
neither to be found in the letter or spirit of that
instrument, or in any other political establishment,
he believed, under the sun. Mr. G. said he re-
joiced that this subject was now to be discussed ;
bethought the crisis peculiarly auspicious for the
discussion. He said the European world, with
which the United States have the most relations,
is now tranquilized. The tremendous scenes of
blood and revolution which had agitated that por-
tion of the globe, had at length subsided into
profound peace; and had left mankind in silent
amazement, to retrospect the wonderful events
which were passed ; and he hoped, with calm de-
liberation, to improve the lessons they had fur-
nished for the benefit of mankind in time to come.
The interests and sympathies, which the people
of the'United Srates felt in these events, no longer
turn their attention from their internal concerns;
arguments of the highest consideration for the
safety of the Constitution and the liberty of the
citizens, no longer receive the short reply, French
partisans! Jacobins! Disorganizers! And al-
though the gentleman from North Carolina sees,
or thmks he sees, the destructive spirit mount in
683
HISTORY OF CONGRESS.
584
H. OF R.
Judiciary System.
FEBmOART, 1802.
the whirlwind and direct the storm, let him be
consoled by tbe information, '^ that all these, our
actors, are mere spirits, and are dissolved into thin
air." Yes, sir. these magical delusions are now
yanished, and have left the American people and
their Cono^ress, in their real persons, and original
American characters, engaged in the transaction
of American concerns.
Upon taking a view of our internal situation,
he observed, although party rage may not be done
away, i^ may be said, its highest paroxysm is past.
And although the gentleman from New York,
(NIr. T. Morris) yesterday observed that the
President had commenced a system of persecu-
tion, so ignorant, he said, he was of the existence
of a such system, that he could not conceive to
what the gentleman alluded. It is sometime,
Mr. Chairman, since a member of this House,
and sundry printers throughout the United States,
have been amerced and imprisoned to appease
the vengeance of an unconstitutional sedition
act, merely for publishing their own sentiments,
which hapj)ened to be unpalatable to the then ex-
isting Administration ! It is sometime, sir, since
we have seen judges, who ought to have been in-
dependent, converted into political partisans, and
like Executive missionaries,pronouncing political
harangues throughout the United States! It is
sometime, sir, since we have seen the zealous
jud^e stoop from the bench to look out for more
victims for judicial vengeance! It is sometime
since we have seen the same judicial impetuosity
drive from the bar the most respectable counsel,
who humanely proposed to interpose between a
friendless and unprotected man and the judicial
yengeance to which he was doomed ! It is some-
time, sir, since we have seen tbe same judicial
zeal extending the provisions of the sedition act,
by discovering that it had jurisdiction of the lex
nonacrnpta, or common law 1 It is sometime since
we have seen the Chief Executive Magistrate
dooming to humiliation " in dust and ashes" a
great portion of the American people ! Yes sir,
these terrific scenes are past. These noisy decla-
mations, and this iudicial zeal, are hushed into si-
lence by the audible pronunciation of the public
will# He said, we may even indulge the hope,
Mr. Chairman, that our pulpits will not much
longer be converted into political forums; and
that the nieekand humble teachers of the Christ-
ian faith, instead of stirring up all the angry and
destructive passions of the human mind, will ere
long once more condescend to teach those lessons
of humility, forbearance, and toleration, taught
them by their Divine Preceptor. Those precepts
so essential to the discovery of truth, by predis-
posing the mind to deliberation and reflection.
The present Executive, pursuing the general
good, and supported by the general confidence,
stands not in need of these artificial aids. He in-
vites inquiry. He knows that the highest enco-
mium which can be bestowed upon his adminis-
tration would flow from a correct understanding
of his motives and his conduct. Instead of call-
ing in the aid of sedition acts to the defamatory
scribblers, who appear to increase in numbers and
in impudence in proportion to the desperation of
their cause and their security from punishment,
he has said, '' Let them stand undisturbed, as mon-
^ uments of the safety with which error of opinion
' may be tolerated, where reason is left free to com-
' bat it.'' Under these auspicious circumstances,
he said, he proceeded to the discussion of the im-
portant question before us with pleasure, conscious
that he was subject to error, and knowing that if
he did err, it was his interest to be corrected ; con-
fident, also, that there was a mass of iatelligence
and calm reflection at this time in the people of
the United States, competent to detect the error
and apply the corrective. Impressed with these
sentiments, he differed widely m opinion with the
gentleman from North Carolina, (Mr. Hcnder-
SON,) who had said, that " If the bill upon your
' table should pass into a law. he would not heave
' a sigh or drop a tear upon the instantaneoos dem-
^ olition of the whole Constitution. The sooner
' it was done the better." Sir, this gentleman and
his associates in political opinions have termed
themselves ^' lovers of order." Is this an evidence
of the practice we are to expect from those gen-
tlemen, under their professions so long and so
loudly made to the people of the United States ?
Cannot that gentleman find some reason to regret
that sentiment in the confidence due to the intel-
ligence and patriotism of a creat portion of his
fellow-citizens who differ with him on that point ?
Or do the gentleman and his political associates
claim, with presumptuous vanity, not only the
appellation or the exclusive " lovers of order," but
also the monopoly of all the intelligence and pa-
triotism of the nation ? He had too much respect
for gentlemen to suppose they would place their
pretensions on this ground. He begsed pardon of
the Committee for this digression ; ne nad been
impelled to it from the course the debate had
taken, and particularly from the indecorous attacks
made on the President of the United States.
He said he would now proceed to examine whe-
ther the repeal of the Judiciary law of the last
session of Congress would in any respect violate
that salutary and practicable independence of the
judges which was secured to them by the Consti-
tution. He said the term independence qfJudgei
or of the Judiciary department was not to be found
in the Constitution. It was therefore a mere in-
ference from some of the specified powers. And
he believed in the meaning of gentlemen, and to
the extent they carry it, that the term is not to be
found either m the spirit, general character, or
phraseology, of any article or section of the Con-
stitutipn. He meant to give the Constitution the
most candid interpretation in his power, accord-
ing to the plain and obvious import of the Bnglish
language. He should discard, in his interpreta-
tion, the terms ^* common defence and ^neral
welfare," which had been resorted to by some
gentlemen. He considered these words as con-
taining no grant. of power whatever, but merely
the expression of the ends or objects to be effected
by the grants of specified powers. He therefore
protested against drawing any aid whatever from
them in his construction of the instrument. Me
685
HISTORY OF CONGRESS.
586
February. 1802.
Judiciary System.
H. OP R.
said he had read throaffh the whole ConstitutioD.
to enable him to form bis opinion upon this ques-
tion, for fear there might be in some hidden corner
of it some provision which mig^ht demonstrate the
unconstitutionality of the present bill ; and if so,
(although he should lament such a provision,) he
would instantly give up the bill. But nis researches
had terminated in a different result. He said he
found, from the general character of the Constitu-
tion, that the general will was its basis, the ^en-
•eral good its object, and the fundamental princi-
ple for effecting this object was the responsibility
of all public agents, eitner mediately or immedi-
ately to the people. He said the context of the
Constitution woulddemonstrate the two first points,
which he begged to read :
<' We, the people of the United States, in order to
form a more perfect union, eetabliih justice, insure do-
mestic tranquillity, provide for the common defence,
promote the general welfare, and secure the blegsings
of liberty to ourselves and our posterity, do ordain and
establish this Constitution for the United States of
America."
Here we find the Constitution founded upon
the will of the people, and the object declared to
be the ffoOd of the peojde. Through the whole
body of the Constitution may be uiscerned the
responsibility of all public agents, either medi-
ately or immediately, to the people. This respon-
sibility results, first, from the division of author-
ity into difi*erent departments; secondly, from a
specification and limitation of the authorities of
ail and each of the departments; thirdly, from
periodical appointments of the public agents. The
first clause declares there shall be a Uonmss, to
whom the business of legislation is confided. This
Congress is to consist of a House of Representa-
tives, to be chosen by the peonle immediately, and
responsible to them at the end of every two years;
and a Senate, to be chosen by the Legislatures of
the difierent States, who are chosen by the peo-
ple— one-third of the Senators to be chosen every
two years, and respoosible at the end of every six
years. The Executive power is vested in a Pre-
sident, who is chosen by Electors, who are chosen
for the express purpose by the people, and respon-
sible at the end of every four years. The Presi-
dent may be considered as immediately responsi-
ble to the people, although chosen through the
medium of Electors; because it is found, in prac-
tice, that the Electors are constrained to avow the
vote they intend to give before they are chosen,
and the people have generally made their elec-
tions with a view to that object.
Thus, then, are formed two departments, their
powers specified and defined, the times for extend-
ing their powers fixed, and indeed a complete or-
ganization for the execution of their respective
powers, without the intervention of any law for
that purpose. A third department, to wit : the
Judiciary department, is still wanting. Is that
formed by the Constitution ? How is that to be
formed ? It is not formed by the Constitution.
It is only declared that there shall be such a de-
partment ; and it is directed to be formed by the
other two departments, who owe a responsioility
to the people. Here there arises an important
difierence of opinion between the difierent sides of
this House, it is contended on one side that the
Judiciarv department is formed by the Constitu-
tion itself. It is contended on the other side, that
the Constitution does no more than to declare
that there shall be a Judiciary department, and
directs that it shall be formed by the other two
departments, under certain modifications. Article
third, section first, the Constitution has these
words: *'The Judicial power of the United
' States shall be vested in one Supreme Court
' and in such inferior courts as Congress shall
' from time to time ordain and establish." Here,
then, the power to ordain and establish inferior
courts is given to Congress in the most unquali-
fied terms, and also to ordain and establish *^ one
Supreme Court.'' The only limitation upon the
power of Congress in this clause, consists in the
number of supreme courts to be established ; the
limitation is to the number of one, although that
is an affirmative and not a negative expression.
The number of judges, the assignation of duties,
the fixing; compensations, the fixine^ the times
when, and places whei^e, the courts shall exercise
their iunctions, dbc, are left to the entire discre-
tion of Congress. The spirit, as well as the
words of the Constitution, are completely satis-
fied, provided one Supreme Court be established.
Hence, when all these essential points in the or-
^nization and formation of courts is intrusted to
the unlimited discretion of Congress, it cannot bd
said that the courts are formed by the Constitu-
tion. For further restraints, therefore, upon the
discretion of Congress, the remaining part of the
same section must be consulted. Here he begged
leave to remark, that he had often felt a venera-
tion for the wisdom of the ^ages who formed this
Constitution; considering the difficulties they had
to encounter, resulting from the various local pre-
judices and local interests of the different parts of
the United States, and the vast variety of opinions
which the subject presented, it was almost won-
derful to conceive how they should have hit upon
a system so admirably calculated to protect and
to promote the general interests, when adminis-
tered according to its original meaning and inten-
tion. He could not ^o so far as to say it was per-
fect. He admitted, like other human productions,
it was stamped with the common fallibility of
man. That he wished, however, to see no radical
changes in its principles. He wished to hand
it down to posterity with those amendments only
which experience should suggest, and whicn
would grow out of the continually varying state
of the nation. He said it was not only remarka-
ble for the wisdom of its^arrangements, but the
correct and technical mode of expression. The
part of the section now to be examined, was an
example of the justice of both these remarks.
The words are, '^ the judges both of the supreme
^ and inferior courts shall hold their offices during
' good behaviour, and shall, at stated times, receive
' for their services a compensation which shall
^ not be diminished during their continuance in
* office."
587
HISTORY OF CONGRESS.
588
H. OF R.
Judiciary System.
February, 1802.
The first part of the sentence respects the rela-
tionship between the Executive and the Judiciary
departments. It respects judges or officers of the
courts who are appointed by the President. The
last part of the sentence respects the relationship
between the Legislative and Judiciary depart-
ments. It respects the creation of offices, the fix-
ing the compensation of the officers or judges,
and their continuance in office. These are the
peculiar attributes of the Legislative department.
Accordingly, the most correct and technical words
are used m relation to both these objects. The
term " hold their offices during good behaviour,"
relates merely to the Executive department. The
term *^ hold;" is the common technical word used
to convey the idea of tenure. Tenure requires
two parties. The one granting, the other holding
or receiving the ^ant. Let the inquiry be made,
of whom do the judges hold ? The Constitution
furnishes the answer, of the President. One of the
most obvious rules in the construction of instru-
ments of writing is,, that the whole of it must be
taken together, and not one particular part by it-
self. The following words will be found in ibe
second section of the second article of the Con-
stitution : "And he (to wit, the President) shall
' nominate, and, by and with the advice and con-
* sent of the Senate^ shall appoint Ambassadors,
' other public Ministers and Consuls, Judges of
' the Supreme Court, and all other officers of the
' United States, whose appointments are not
^ herein otherwise provided for, and which shall
' be established by law." In the third section of
the same article, are these words: "And shall
(to wit, the President) commission all the officers
of the United States." These three sentences
contain the relationship between the Executive
and Judiciary departments, so far as respects the
objects of the present discussion.
TO ascertain the real meaning and import of
these sentences, they should be read in connexion
with each other, excluding therefrom all interme-
diate words not immediately bearing on the sub-
ject. In that case the Constitution would read
thus : " He (to wit, the President) shall nominate
' and appoint the judges of the Supreme Court,
' and all other officers of the United States, and
' shall commission all the officers of the United
^ States. The judges both of the supreme and
' inferior courts shall hold their offices during good
f behaviour." It may now be asked, if this case
of the judges of the supreme and inferior courts
be not an obvious exception out of the general
Presidential discretion of appointing and commis-
sioning all officers of the United States during
pleasure? After the Government has been in
operation above twelve years, and the principle. of
commissioning all Executive officers during plea-
sure, has been practised upon during the whole of
the period by the Executive, as well as the Le-
gislative department, the propriety of that prac-
tice is for the first time now become questionable.
It Is said that the right to commission during
pleasure, is by implication. It is readily admitted
that there are no express words in the Constitu-
tion to that effect -, i)ut the inference from the
words which are there, is almost as strong as the
words themselves, if they had been inserted. The
President is authorized, without limitatioD, to
^* commission all the officers of the United States.^
The question arises, by what tenure? The reply
is, according to his pleasure or discretion. It was
not difficult to foresee, that if the President was
fully empowered to commission as he pleased, he
would please to commission during his pleasure.
The Legislature has no more control over an offi-
cer who holds an Executive commission during
the pleasure of the President, than over a Judi-
cial officer holding his office during good beha-
viour. The remedy given by the Constitution
being the same in both cases, to wit : impeacb-
ment. Nor is there any reason why the office of
the one should be less subject to the discretion of
the Legislature, than the office of the other; and
it seems to be universally agreed, that although
the Legislature cannot deprive an Executive om-
cer of his office in any other way than by im-
peachment, durinff the continuance of such office,
yet the office itself is always subject to be abol-
ished. The same reasoning will hold with equal
force respecting a judge and a Judicial office.
The reason why the Executive is proscribed from
the removal of a judge, is to secure to the judge
a complete independence of the President, who
is not responsible for the dischar^ of Judicial da-
ties; but the removal is perfectly correct in the
case of an Executive officer, because the Presi-
dent is highly responsible for the due discharge of
Executive duties. The Legislature is not respon-
sible for either, and of course stands in the same
Constitutional relation to both. This appears ob-
vious from furnishing to the Legislature the ssftne
means of removing both, as will appear bv the
fourth section of the second article, in the follow-
ing words : " The President, Vice President, and
^all civil officers of the United States, shall be
^ removed from office by impeachment for, and
^ conviction of treason, bribery, or other high
' crimes or misdemeanors." He now begged to
call the attention of the Committee particularly
to the last clause of the sentence, which ascer-
tains the Constitutional connexion between the
Legislative and Judicial departments, so far as
respects the limitation of the Legislative, in the
exercise of the power committed to it. for the or-
ganization of the Judicial department. He should
place particular emphasis on these words of the
Constitution in the exposition he proposed to
make. The words are : '^ And shall at stated
' times receive for their services a compensation.
^ which shall not be diminished during their con-
^ tinuance in office." The first part of this sec-
tion having given to Congress the power of cre-
ating courts, ascertaining the number of judges,
dbc, these last words niay be considered as con-
taining explanations and limitations of the gen-
era! power of Congress, as was the foregoing part
of this sentence a limitation of the general Exec-
utive power. And accordingly the most correct
terms are used for limiting Legislative disc retion,
and explaining its objects; according to the
words of this sentence, the judge is to receive a
589
HISTORY OF CONGRESS.
590
February, 1802.
Judiciary System,
H. ofR
compensation fur his services. To whom are
these services to be rendered 1 To the people, for
the benefit of the people. Who is to judge of the
necessity or utility ol these services ? The Con-
stitution has ordained, that Congr^s, or in other
wordSf the Representatives of the people, shall be
the tribunal. Suppose there should be no services
required, none for the judge to perform, and that
Congress should so think and determine : Is the
judge entitled to compensation ? He is not. The
condition of service for the benefit of the people,
is the express consideration upon which the com-
pensation accrues. No service is rendered, the
competent tribunal says, there is none required, of
course no compensation accrues. The judge is
entitled to receive none. On this point, an obvi-
ous and most important difference oi opinion exists
between the two sides of the Committee. On one
side it is contanded, that the office is the vested
property of the juage, conferred on him by his
appointment, and that his good behaviour is the
consideration of h[s compensation ; so long^ there-
fore, as his good behaviour exists, so long his office
must continue in consequence ot his ^ood beha-
viour, and that his compensation is his property
in virtue of his office, and therefore cannot be ta-
ken away by any authority whatever, altbougrh
there may be no service for him to perform. On
the other side, it is contended that the good beha-
viour is not the consideration upon which the
compensation accrues, but services rendered for
the public good ; and that if the office is to be
considered as a property, it is a property held in
trust for the benefit of the people, and must there-
fore be held subject to that condition, of which
Congress is the Constitutional judge. Mr. G.
said, considering the boundary line between these
conflicting opinions to be the boundary line be-
tween the offices held for public utility, and offices
held for personal favor, he could not bestow too
much attention upon this part of the discussion ;
for if the construction gentlemen contend for
should prevail, in vain have the fraraers of the
Constitution, with so much jealous circumspec-
tion, erected so mauy ramparts against the intro-
duction of some of these offices m the Govern-
ment of the United States. A sinecure office is
an office held without the condition of service;
often for past services already compensated ; oft-
en for present favor, without the condition of
any service. For the purpose of excluding from
the Federal Government all sinecure offices, the
sages who formed the Constitution have through
every part of it connected services and compensa-
tion, and they ou^ht never to be separated in con-
struction. The sixth section of the first article is
in these word5: " The Senators and Representa-
* tives shall receive a compensation for their ser-
^ vices, to be ascertained by law," dbc, and so far
has this principle of the rendition of service been
carried, that the service of the Senate and Repre-
sentatives is to be rendered every day, and unless
they do daily render service, they are not entitled
to their day's compensation. In the first section
of the second article of the Constitution, are these
words : " The President shall, at stated times, re-
' ceive for his services a compensation," &«. In
the forty-first section of the act under which the
judges claim their compensation, are these words ;
'^ That each of the circuit judges of the United
' States, to be appointed by virtue of this act,
' shall be allowed as a compensation for his servi-
< ces," dbc. These expressions all demonstrate the
importance of coupling the service and compen-
sation of office. But the jealous caution of^the
framers of the Constitution did not stop at choos-
ing the best affirmative expression for excluding
this doctrine of sinecure offices, they also appliea
negative restraints.
In the ninth section of the first article of the
Constitution, are these words, '* No money shall be
drawn from the Treasury but in consequence of
appropriations made by law." In the the same
section, |'No title of nobility shall be granted bv
^ the United States, and no person holding an vot-
^ fice of profit or trust uuder them, vhall, witnout
^ the consent of Congress, accept of any present,
' emolument, office, or title, of any kind whatever,
' from any King, Prince, or foreign State." If then
services rendered for the public benefit, be the es-
sential consideration, upon which the compensa-
tion does accrue to the judges ; if the Congress be
the proper tribunal for pronouncing upon the ne-
cessity or utility of such service, and if they de-
cide that no such service is necessary or useful ;
the judge sustains no injury in not receiving the
compensation, because he does not comply with
the condition on his part j nor does he sustain a
hardship thereby, because it must be presumed
that he understood the second conditions attached
to his office at the time of his acceptance. It has
been admitted by all gentlemen, that Congress
is the Constitutional tribunal for deciding respect*
ing the services to be performed. They admit
that Congress may modify the courts, diminish or
add to their duties, alter the terms of their sessions,
or make any other arrangements respecting them
which do not go to take away or diminish their
compensations. It is to be observed that there is
not one of these powers specified in the Consti-
tution; they are therefore necessary inferences
from the paramount power " to ordain and estab-
lish," and the power of repeal, or to take away all
the services to be performed, is as necessary an
inference as either of the others, and has uni-
formly resulted from every other specified power
in the Constitution. From this part of the sen-
tence, therefore, it is deducible, that the only re-
straint upon the general power given to Congress
in the first part uf the section to ordain and es-
tablish courts, is, that the compensations of the
judges should not be lessened during their con-
tinuance in office ; not during their good beha-
viour. And in this part of the sentence the cor-
rect phraseology of tne Constitution is worthy of
observation. In speaking of the Executive attri-
bute, to wit, the appointing and commissioning
officers, the term good hauiviour is used. In
speaking of the Legislative attribute, to wit, the
creation of the offices and fixing compensations,
the term during their continuance in office is used.
The reason for this variation of expression is ob-
591
HISTORY OF CONGRESS.
592
H. OP R.
Judiciary System,
February, 1802.
yious. It was known that the office might be dis-
-continued, and the judge continue to behave well ;
the limitation was therefore applied to the office,
and not the good behavour, because if the office
should ,be discontinued, which is clearly implied
in this expression, it was not the intention of the
'Constitution that the compensation should be re-
ceived, no service in that event being to be ren-
dered. From this interpretation of the Constitu-
tion, all of the departments are preserved in the
due exercise of their respective tunctions for the
general good, without any of the mischievous and
absurd consequences resulting from the opposite
construction. It is admitted that the first part of
this section expressly vests Congress with the gen-
eral power to ordain and establish courts ; and, if
there had been no other restriction, the consequent
power to unordain, or abolish. The restriction
relied upon is not a restriction in express words :
there are no words in the Constitution prohibit-
ing Congress from repealing a law for organizing
courts ; the restraint contended for, therefore, is
by implication, and that implication, to say the
least, not expressly^ connected with any Legisla-
tive attribute. Is it right, is it a correct interpre-
tation, that when a power is given in express
words for the most important purposes, that it
should be restained or prohibited by implication ?
Can so much inattention and folly be attributed
to the framers of the Constitution, as would result
from the supposition that if it was their inten-
tion that a law growing o<it of one of the specified
powers, in contradistinction to all others, should
be irrepealable when once passed, that so extraor-
dinary a principle would be left to mere implica-
tion? Such a supposition would be the highest
injustice to the superior intelligence and patriot-
ism of those gentlemen, manifested in every other
part of the instrument. No, sir, they would have
made notes of admiration : they would have used
every mark, adopted every caution, to have ar-
rested and fixed the attention of the Legislature
to so extraordinary a principle.
They would have said, Legislators! be circum-
spect ! Be cautious ! Be calm ! Be deliberate !
Be wise ! Be wise not only for the present, but be
wise for posterity ! You are now about to tread
upon holy ground. The law you are now about
to pass, is irrepealable ! Irrevokable ! We are so
enamored with the salutary and practical inde-
pendence of the English Judiciary system, that
in infusing its principle>dnto our Constitution, we
have stamped it with the proverbial folly of the
Medes and Persians ! If this principle had been
introduced into the Constitution in express words,
it would have formed an unfortunate contrast to
all other parts of the instrument ; yet gentlemen
make no difficulty in introducing that principle
by construction, which would have appeared so
stupid and absurd if written in express words in
the body of the instrument. But there is no such
language in the Constitution. Let us see what is
the language of that instrument. " The Judicial
power of the United States shall be vested in one
Supreme Court, and in such inferior courts as
Congress may from time to time ordain and es-
tablish." Here, then, instead of cautioning the
Legislature that a law for the organization of
courts, when passed, can never be repealed, it con-
tains an invitation to a revision from time to time.
It contains an intimation, that the subject is new
and difficult, and an injunction to ordain and es-
tablish your courts from time to time, according
to the results, which an experience of the system
alone could su^£rest. The gentleman from Penn-
sylvania, (Mr. Hemphill,) observed that the char-
acter of irrepealability was not exclusively attach-
ed to this law, and attempted to furnish instances
of other laws of the same character. He instanced a
law forthe admission of anew State intothe Union.
The gentleman from Kentucky (Mr. Davis,)
had given a proper reply to that remark ; the
strongest instance the gentleman gave, was of a
law executed. After the new State is admitted in-
to the Union, in virtue of a law for that purpose,
the object of the law is answ;ered. The State ad-
mitted has no stipulated duties to perform on its
part, no services to render ; in the case before the
Committee the law is in a state of execution, and
the judges have services to render on their part
which the competent tribunals may determine to
be neither useful nor necessary. A law for the
appropriation of money to a given object, may be
adduced as an instance; the money is applied;
its object is answered ; the law may be said to be
irrepealable, or, in other words, the repeal would
produce no effect. That is not the case of the
law in question. Mr. G. said he had no doubt
but that the framers of the Constitution had par-
ticular reference to the British act of Parliament
of William the III. for the establishment of the in-
dependence of the judges in that country, in fram-
ing the section for the establishment or the Judi-
cial department in the United States; and it is
not a little remarkable, that whilst gentlemen in
one breath speak of the independence of the En-
glish judges, as the boast and glory of that nation,
in the next breath they tell us that by the repeal
of the present act. the independence of the judges
here would be inundated. Let this subject be
examined. In the third chapter of the first book
of Blackstone's Commentaries, the independence
of the English Judiciary is fully explained. He
begged to read the exposition ot that commenta-
tor on that subject.
"And, in order to maintain both the dignity and in-
dependence of the judges of the superior courts, it is
enacted by the statute, 18 W. III. c. 2, that their com-
missions shall be made (not, as formerly, durante btne
pladtOf but) qtuLin diu bene se geeterint, and their sal-
aries ascertained and established ; but that it may be
lawful to remove them on the address of both Houses
of ParUament. And now, by the noble improvements
of that law in the statute of Geo. III. c 23, enacted at
the earnest recommendation of the King himself, from
the Throne, the judges are continued in their offices
during their good behaviour, notwithstanding any de>
mise of the Crown, (which was formerly held immedi-
ately to vacate their seats,) and their full salaries tit
absolutely secured to them during the continuance of
their commissions. His Majesty having been pleased
to declare, that ** he looked upon the independence and
uprightness of the judges, as essential to the impartial
593
HISTORY OF CONGRESS.
594
February, 1802.
Judiciary System,
H. OP R.
adminiBtration of justice ; as one of the best securities
of the rights and liberties of his subjects; and as the
most condi^cive to the honor of the Crown."
Now, sir, under the doctrine contended for by
the repeal of this law, let us see whether the judg-
es of the United States are not more independent
than the judges of England. In the first place,
Congress have the power of originating, abolish-
ing, modifying^, dbc., the courts here. The Piarlia-
ment in England have the same power there.
Congress cannot remore a Judicial officer from
his office so long as the office itself is deemed use-
ful, except by impeachment, two thirds of the Sen-
ate being necessary to a conviction. In England,
judges can be removed from their offices, although
the offices may be deemed useful, by an address of
a majority ot the two Houses of Parliament.
Here then is one essential advantage in favor of
the independence of the judges of the United
States. Congress cannot diminish the compen-
sation of the judges here during their continuance
in office. In England, the Parliament mav dimin-
ish the compensation of the judges at their dis-
cretion, during their continuance in office. Here
then, is another obvious advantage in favor of the
independence of the judges of the United States;
whence ib it, then, that we hear of the independ-
ence of the English Judiciary, as beincr the boast
and glory of that country, and with lustice too,
and at the same time hear the cry of the immola-
tion of the independence of the judges of the Uni-
ted States, when, under the interpretation of the
Constitution by the favorers of the repeal, the
judges here are more independent than the En-
glish judges? It can have no other object than
to excite a popular clamor, which, if excited at all,
can have only a momentary effect, and will be
dissipated as soon as the subject shall be thorough-
ly examined and understood. But it appeared to
him. that if gentlemen really do value the inde-
pendence of the judges^ they have taken an un-
fortunate ground m the mterpretation of the Con-
stitution. Under their construction the judffes
may be placed not only in a dependent, but a lu-
dicrous point of view.
Gentlemen admit that Congress may constitu-
tionally increase or diminish the duties of judges;
five or take away jurisdiction ; fix the times of
oldiDg courts, dbc., saving therefrom the salaries
of the judges. Under this admission, Congress
may postpone the sessions of the courts for eight
or ten years, and establish ^others, to whom they
could transfer all the powers of the existing courts.
In this case, the judges would be held up to the
people as pensioners, receiving their money and
renaering no service in return ; or Congress might
convert them into mere courts of piepoudre, as-
signing them the most paltry duties to perform,
and keep them continually m session, in incon-
venient places ; whilst new courts could be erect-
ed to perform all the essential business of the na-
tion. This would be taking down the high pre-
tensions assigned to the judges by the gentleman
from North Carolina, (Mr. Henderson,) of being
formed into a permanent corps for the purpose of
protecting the people against their worst enemies,
themselves; and degrading them into pitiful courts
of piepoudre, rendering little service and receiving
large compensations. And this would be the case,
if party purposes were the object, and not the gen-
eral gooG. According to his construction, these
absurd results could not take place, unless by a
virtual breach of the Constitution. Because, he
contended, that service and compensation were
correlative terms ; and that there ought always to
be a due apportionment of service to compensa-
tion. This he considered as the plain and sound
interpretation of the Constitution, and the moment
it is departed from, infinite absurdities ensue. He
intended to have taken another view of this sub-
ject, as it respects the relative influence of the law
of the last session, and the proposed repeal upon
this question ; but the gentleman from Massachu-
setts (Mr. Bacon) has put this subject in so much
stronger point of view than he could do, that he
would refer to his remarks thereupon, observing
only that he had no doubt but that the law of last
session, now proposed to be repealed, was in every
respect as much opposed to the doctrine of gentle-
men, as the contemplated repeal could be. The
sections of the law particularly alluded to, are the
twenty-fourth, in these words, ''and be it further
, ' enacted, that the district courts of the United
* States, in and for the districts of Tennessee and
' Kentucky, shall be and are hereby abolished,"
and the twenty-seventh, in these words, *' and be
* it further enacted, that the circuit courts of the
' United States, heretofore established, shall cease
' and be abolished."
He said he would now examine some of the
consequences of the doctrine against the repeal,
and see if it can be recommended from that con-
sideration. First, as it respects the Judicial de*
partment. Its first effect is to produce a perpet*
ual increase of judges and salaries, without any
practicable mode of reducing them. This is in-
consistent both with the general sentiment of the
people and the Constitution, that requires that no
compensation shall be received, without an equiv-
alent service rendered.
T)ie gentleman from Pennsylvania supposes
that there would be as much danger that a cor-
rupt legislature would give an enormous sum, say
two hundred thousand dollars, to one judge, as to
increase too great a number of judges. Yet he
says the Legislature is restrained in express words
from lessening the salary, and infers from that
circumstance that it is also restrained from lessen-
ing the number of officers. Mr. G. made from it
the direct contrary inference. If there be neither
the power to lessen the sum nor abolish the office,
there is no remedy for the evil the gentleman sug-
gests. It is an incurable mischief. There is.
therefore, a necessity for a power to abolish the
office, as a remedy against the enormous abuse of
giving so large a sum without the rendition of
equivalent service. And as express words were
deemed necessary to limit the discretion of Con-
fress against diminishing the sum, so would there
ave been greater necessity for express words to
limit the discretion of Congress against the abo-
lition of unnecessary offices.
595
HISTORY OF CONGRESS.
596
H. OP R.
Jvdidary System,
February, ld02.
Mr. G. said, that according to a sound rule o(
interpretation, where a general grant of power is
made, and one limitation to the general power is
expressed, the expression of that limitation is an
exclusion of all intention to make any other limit-
ation whatever, by inference or implication. And
this rule will apply to all other cases put by gen-
tlemen, where there is an express limitation of
Legislative authority. But the most important
consequence from this doctrine is, that it erects the
judges into a body politic and corporate, in per-
petual succession, with censorial and controlling
powers over the other departments. And for what
purpose ? The gentleman from North Carolina
(Mr. Henderson) has informed us, " to protect
the people against their worst enemies." them-
selves ! This is the real exposition of tne object
in very few but emphatical words. As the induce-
ment to the adoption of this principle, gentlemen
have reminded us of the fate of a foreign country,
of the violent passions which agitate popular as-
sembles, of the age, experience, the unassuming
talents and unambitious virtue of judges. He said
the judges were selected from their fellow-citizens,
and he presumed possessed the same human pro-
pensities. He said all men love power, and in
general, those love it best who know best how to
use it. Let us apply this remark to the judges of
the United States.
Very shortly after the establish ment of the courts,
the judges decided that they had jurisdiction over
the States in their soverei^'capacity. Did this, in
the judges, seem unambitious? The States thought
it did not. It happened that during the Revolu-
tionary war, the State of Massachusetts had issued
certain obligatory bills, whifth were made trans-
ferable, and which were outstanding without any
provision for their payment; suits were instituted
on these bills. The court determined to bring the
^reat State of Massachusetts, and not Virginia, on
Its knees, not at the feet of justice, but policy.
Upon the representation of Massachusetts, an
amendment was made to the Constitution of the
United States, declaring that the Constitution
should not be construed to extend to authorizing
the courts to arraign and pronounce judgment
against States which had not consented to give
up their sovereignty. Thus this unambitious pro-
ject of the judges was prostrated by a Constitution-
al interposition. He read the amendment, in the
following words ; " The judicial power of tne Uni-
^ ted States shall not be construed to extend to
* any suit in law or equity, commenced or prose-
' cuted against one of the United States by citizens
' of another State, or by citizens or subjects of any
^ foreign State." The judges have determined
that the^ are judges in the last resort upon the
constitutionality of your laws. He proposed not
to discuss this question, because he did not think
it pertinent to the question before us. He only
mentioned it to show their unlimited claims to
power. The judges have determined that their
jurisdiction extends to the lex non scripta, or
rather to the lex non descripta, or common law.
Does this, in the judges, seem unambitious? This
law pervades the whole municipal regulations of
the country. It is unlimited in its object, and in-
definite in its character. Legalize this unassum-
ing claim of jurisdiction by the judges, and they
have before them every object of legislation. They
have sent a mandatory process, or process leading
to a mandamus, into the Executiye cabinet, to
examine its concerns. Does this, in the judges.
seem unambitious ? Now, sir, examine and com-
bine the extraordinary pretensions to power, le-
galize them, and you have precisely that body
politic and corporate which gentlemen deem so
important in the United States '' to protect the
people from their worst enemies — themselves I"
He should not resort so frequently to this expres-
sion, but that he did consider it as the candid and
correct exposition of the object of gentlemen op-
posed to the repeal. It was the doctrine of irre-
sponsibility against the doctrine of responsihility.
The latter, he had endeavored to show, charac-
terized the Constitution of the United States. It
was the doctrine of despotism, in opposition to
the representative system. It was an express
avowal, that the people were incompetent to gov-
ern themselves. This he believed to have been
the great characteristic difference, from the com-
mencement of the administration of the Govern-
ment to the present day. If, indeed, there be a
political corps necessary to interpose between the
people and themselves, he considered the Judi-
ciary corps, supported by the doctrines on this
floor, well calculated to effect that object.
He said he would now examine the conse-
quences of the doctrine against the repeal, as it
respected the Legislature. He said it would have
a direct tendency to impair the responsibility of
the Representatives to tne people. He could not
illustrate this observation better than by giving
the history of the law proposed to be repealed.
The first bill for changing the organization of
the courts of the United States was reported to
the House of Representatives the 11th of March.
1800 ; after undergoing some discussion and
amendment, it was recommitted and reported
again the 31st of March, 1800; on the 14th of
April it was postponed by a majority of two votes.
At this time the Presidential election was ap-
proaching, and the result uncertain. The bill
upon which the law in question was foanded,
was reported to the House of Representatives the
19th December, 1800, and passed that House the
20th January, 1801. It was read in the Senate
the 21st of January, 1801, and passed the 7th of
February, 1801. At this time the Presidential
election, so far as it respected the then existing
President, was ascertained.
Mr. G. said, he proposed to be particular in as-
certaining[ the facts respecting the passage of this
law and its execution, because gentlemen had
complained that rumors had gone m to circulation
respecting its passage, and the appointments un-
der it, not warranted hy the facts ; a sense of jus-
tice had therefore induced him to make the strict-
est inquiry into the dates and facts, and the result
of that inquiry, upon his mind, had been as unfa-
vorable to its advocates as any impression which
had been made by the rumors complained of. He
597
fflSTORY OF CONGRESS.
698
February, 1802.
Judiciary System,
H.opR.
said, at the time of passing the laW) no complaints
had been presented to Congress against the com-
petency of the former system j not even a
memorial from the bar of Philadelphia. He be-
lieved the former system to have been amply com-
petent. The business, indeed, had very much
declined ; he observed that, in the Spring of 1799,
the whole number of causes instituted, exclusive
of Marylmd and Tennessee, amounted to seven
hundreu and three, besides seventy-eight criminal
prosecutions in Pennsylvania. In the Fall of 1800,
there were instituted only three hundred and fifty-
five; without any information, however, on this
point, the law was passed. On the 19th of Febru-
ary, 1801, it was approved by the President. On
turning to the Journals of that day, it will be found
tbat the House of Representatives was not en-
gaged in the ordinary business of the session ; they
were engaged in the extraordinary business of
electing a President.
In a note made on that day on the Journals will
be found a Message from the President in these
words : " A Message was received from the Pres-
^ ident of the Unit^ States by Mr. Shaw, his Sec-
' retary, notifying that the President did this day
^ approve and sign an act which originated in the
' House of Representatives, entitled 'An act to
' provide for the more convenient organization of
' the courts of the United States." Upon exam-
ining the Journals themselves, he said, he found
an entry in these words: '^ The time agreed upon
' by the last mentioned vole being expired, the
' States proceeded in manner aforesaid to* the
* twenty-ninth ballot ; and, upon examination
' thereof, the result was declared to be the same."
Mr. Q. said, need I remind gentlemen, now pre-
sent, who were agents in the exciting scenes, of
the extraordinary situation of Congress at that
moment? When in the House of Representa-
tives the ordinary business of legislation was sus-
pended, a permanent session decreed ; when lodg-
ing and subsistence were furnished the members
within the walls of the Chamber ; when even a
sick bed was introduced to enable its patient to
discharge a sacred duty. Need 1 awaken the re-
collection of our fellow-citizens, who were look-
inor with indignant anxiety on the awful scene ;
benolding their representatives, urged by the most
tempestuous passions, and pushing forward to im-
molate the Constitution of their country? No,
sir, the awful scene is freshly remembered ! And
what was its object? To prevent the fair and
known expression of the public will in the high-
est function it has to perform — in the choice of
the Chief Executive Magistrate of the nation. In
this state of things, when all confidence amongst
the members of this House was lost, in the high-
est paroxysm of partv rage, was this law ushered
into existence. Ana now its advocates gravely
tell us to be calm — to guard against the danger of
our passions. They tell us, at the same time, that
the law thev have passed is sacred ! inviolable !
irrepealable f Does it merit this extraordinary
character from the circumstances which accom-
panied its passage? It does not.
Let us examine how this law was carried into
effect. Members of the Legislature who voted
for the pa5sage of the law were appointed to of-
fices, not indeed created by the law, the Consti-
tution having wisely guarded against an effect of
that sort, but to judicial offices previously cre-
ated, by the removal, or what was called the pro-
motion of judges from offices they then held, to
the offices ' newly created, and supplying their
places by members of the Legislature who voted
for the creation of the new offices. In this sub-
stitution, however, it appears that no respect was
paid to another provision of the Constitution.
The sixth section of the first article of the Con*
stitution contains these words: ^*No Senator or
* Representative shall, during the time for which
' he was elected, be appointed to any civil office
* under the authority of the United States, which
* shall have been created, or the emoluments
' whereof shall have been increased during such
^ time ; and no person holding any office under
^ the United States shall be a member of either
^ House during his continuance in office." If va-
cancies had existed in the previously existing
judicial establishments, the appointments of the
members of the Legislature might not be con-
sidered as a direct breach of this provision in the
Constitution ; but this was not the fact, no vacan-
cies did exist. It was necessary to make provision
for members voting for the law that vacancies
should be made by the removal or promotion of
the then existing judges. This was done under
this authority in the Constitution — second sec-
tion, second article : and he, to wit, ^' the Presi-
* dent of the United States shall nominate, and by
^ and with the advice and consent of the Senate,
^ shall appoint Ambassadors and other public
' Ministers and Consuls, Judges of the Supreme
' Court, and all other officers of the United States,"
dbc. Again: "The President shall have power
* to fill up all vacancies that may happen during
^ the recess of the Senate, by granting commis-
^ sions, which shall expire at the end of the next
' session." How did the then President exercise
the power in the present case? He did not wait
until the vabancies should happen. He attempt-
ed to make vacancies by what he called the pro*
motion of judges, although thev held their com-
missions of him '^during good behaviour;" and,
without waiting to know whether the judges
would accept the promotion or not, upon which
event alone a vacancy could accrue^ he proceed-
ed to appoint and actually commission members
of the Legislature to offices then actually held by
other commissions granted to other persons. What
was the effect of this procedure? That two per-
sons held commissions to perform the same duties,
althouffh one person only was authorized by law
to discbarge those duties, whilst the office where
the promotion was refused remained vacant. This
was actually the case in several districts of the
United States. This subject will be put into a
still stronger point of view by examining the
Journals of the Senate, which he was sorry to do
for that purpose. When discussing the bill in
question m the Senate, he found this entry on
their Journals, " on motion to strike out the whole
599
HISTORY OF CONGRESS.
600
H. OP R.
Judiciary System*
February, 1802,
^ of the bill after the words ' from and after,' sec-
' tion first, line second, for the purpose of insert-
' ing as follows, to wit, a substitute for tbe bill/'
On the question to agree to this motion, it passed
in the negative — yeas 13, nays 17. He observed
among the nays the names of Mr. Green, of
Rhode Island, and Mr. Read, of South Carolina.
Both these gentlemen received appointments in
virtue of the promotion of judges under this law.
If these gentlemen had voted on the opposite side
of the question, the law would never have been m
existence. He mentioned this circumstance not
to impugn the motives' of any gentleman, but to
demonstrate the temptation held out to the mem-
bers of the Legislature under the doctrine con-
tended for against the repeal of this law. The
refusal of the present President to correct what
was called a mistake in Mr. Green's appointment
having excited some clamor, it was necessary to
put that subject in a correct point of view. It
seems, that in filling up Mr. Green's commission,
the word " circuit," instead of the word " district,''
was iniferted, it is presumed, by niistake. If the
commission was intended for the circuit court, it
was a breach of the Constitution in its most ob-
vious letter. If it was intended for the district
court, it was void ab initio: because, at the date
of the commission, no vacancy had happened, and
the President's right to appoint depended on that
precedent condition, and he, therefore, in making
the appointment, attempted to exercise a power
he did not possess. It must be obvious to every
gentleman that Mr. Green's accepting the com-
mission, under all the incidents attending the case,
could furnish but a negative recommendation of
Mr. Green in his application for that or any other
appointment. Upon a review of the history of
the law in question, according to the doctrine of
its advocates, the temptation to the Legislature to
make permanent, irrevocable provision for them-
selves, must be obvious to every impartial ob-
server. If, when a judicial establishment be once
made, it becomes irrevocable, how easy would it
be for a Legislature, combined with the Execu-
tive, to compensate themselves for the loss of the
confidence of their constituents, by following the
example before us? By erecting a new tier of
judges, holding out to them additional emolu-
ments, and by filling up the vacancies occasioned
by their promotion with the members of the Le-
gislature.
This operation would be most likely to take
place when the Representatives had lost the con-
fidence of their constituents, and of course less
likely to be influenced by considerations of public
f[ood. Again, sir, the sinecure system thus estab-
ished would have the advantage of all other sim-
ilar systems existing in the world; because, if in
other countries, the sinecure system has become
oppress! veto the people, they have the consolation
to recollect, that the evil may be lessened by the
competent authority; but, according to the doc-
trine upon which the system is bottomed in the
United States, no remedy can be applied to the
mischief by the union of all the responsible agents
of the people. How, sir, would the framers of
our Constitution lament, after all the care and
circumspection they had used to exclude this sys-
tem entirely from the practical operation of the
Government, that the Constitution itself should
be made the instrument of its introduction, and
its permanent irrevocable establishment! And
this, too, at* the moment of an expiring Adminis-
tration, when the passions of men just partiuj^
from power were breaking down every- impedi-
ment which stood in the way of attaining their
object! Upon the whole, therefore, it appears,
that this doctrine of the irrepealability of laws
derives no consideration from the consequences
which naturally flow from it.
Mr. G. said, that having exhausted so great a
portion of the time and attention of the Commit-
tee in discussing the Constitutional question, which
had been made the cardinal point in the debate,
he proposed to confine himself to very few obser-
vations upon the expediency of the contemplated
repeal. He said he took it for granted, thai the
former Judicial system was competent to the dis-
charge of all the judicial business in the United
States ; but if that should be denied, he thought
it demonstrable from the document before the
Committee. The gentleman from Delaware Q\t.
Batard) had intimate^ a doubt whether tbe Pre-
sident had acted correctly in favoring us with the
document. He should only observe in reply, that
the Constitution imposed a duty upon tbe Presi-
dent, from time to time, to give to Congress in-
formation of the state of the Union, and recom-
mend to their consideration such measures as he
shall judge necessarjr and expedient. He said
that the number of suits in the courts of the Uni-
ted States must always be very small from the
limited objects of their jurisdiction ; this will ap-
pear by reading the second section of the third
article of the Constitution, limiting their jurisdic-
tion. The whole expense of the existing system
is $137,000, of which forty or fifty thousand may
be attributable to the new system, the estimates
differing between these two sums. Whether the
expense be estimated either according to the ser-
vice to be rendered, or by comparison with any
other system, it appeared to him to be enormous.
He examined the document before us by way of
ascertaining the relative view of expense and ser-
vice, and also the competency of the former sys-
tem to the discharge of the business. He would
not, however, be responsible for precise clerical
accuracy in his addition, which has also been
deemed a subject worthy of criticism against the
President of the United States. But if it be
within twenty-five per cent, of being correct, it
will demonstrate, first, that the former courts were
competent to the business; secondly, that the
number of causes bear no proportion to the ex-
pense of the institution.
Mr. G. said he would present to the view of the
Committee the whole number of causes instita*
ted at the respective sessions of the courts, from
the Spring of 1796 to the Spring of 1801. He
had fixed upon the year 1796, because tbe busi-
ness be^an tlien to increase under the influence of
the British Treaty. In all the circuit courts of
601
HISTORY OF CONGEESS.
602
February, 1802.^
Judiciary System,
H. OF R.
the United States, except Maryland and Tennes-
see, the whole number of causes of every descrip-
tion instituted in the Spring of 1796, were two
hundred and ninety -four ; Fall, one hundred and
ninety-two : 1797, Spring, four hundred and eigh-
ty-one; Fall, three hundred and ninety-seven:
1798, Spring, three hundred and ti^enty-five;
Fall, three hundred and ninety-seven : 1799, Spring,
seven hundred and three, exclusive of ninety-
eight criminal prosecutions in Pennsylvania; Fall,
four hundred and fifty-five: 1800, Spring, four
hundred and fifty-one — seventy criminal prosecu-
tions in Pennsylvania; Fall, three hutrdred and
fiftv-five : 1801, Spring, three hundred and fifty ;
mailing the common calculation of suits settled
between the parties without trial, dismissions,
abatements, &c., dbc^ and it would appear that
the whol« number of judgments against solvent
persons would hardly compensate the expense of
the institution. It also appears that the number
of causes left to be tried could easily be decided
by the six former judges.
Mr. G. said, upon looking over the number of
suits in the Eastern circuit, it appeared to him
strange, that the members representing that part
of the country should insist upon increasing the
expense of the system, when the courts have there
scarcely any business to attend to ; and that gen-
tlemen in the Southern States, where the busi-
ness was greater, should be willing to lessen the
expense. He said he never heard the smallest
complaint in the State he represented respecting
the incompetency of the former courts to dis-
charge the business in that State. He believed
they had always gone through the docket, when-
ever they attended, and as far as his own observa-
tions went, that was the fact. He said, it appeared
strange to him, that the new courts and new ex-
penses should be called for in other parts of the
United States, when the old courts were compe-
tent to the business in that State, where the busi-
ness has been considerably more than in any other I
State, althoush it is now very much declined, and
probably willdecline still more. In the courts of,
Maine, West Pennsylvania, West Virg^inia, and
West Tennessee, no suit at all had been instituted
in June last.
Under the view of the subject thus presented.
Mr. G. considered the late u;ourls as useless ana
unnecessary, and the expense, therefore, was to
him highly objectionable. He did not consider it
in the nature of a compensation, for there was no
equivalent rendition of service. He could not
help considering it as a tribute for past services ;
as a tribute for the zeal displayed by these gentle-
men in supporting principles which the people
had denounced. He thought the federal maxim
always was, " millions for defence, not a cent for
tribute." He could not consent to tax the people
even one cent, as a tribute to men, who disre-
spected their principles. Another objection he
had to the new organization of the courts was,
their tendency to produce a gradual demolition of
State courts, by multiplying the number of courts,
increasing their jurisdiction, making bonds or
obligatory bills assignable, with the privilege of
bringing suits in the name of the assignee, dec,
or as gentlemen say, bringing federal justice to
every man's door ; the State courts will be ousted
of their jurisdiction, which he thought by no
means a desirable event. Under this considera-
tion alone, and under the conviction he felt of the
inutility of the courts, he should vote for the
repeal.
Mr. G. concluded by observing, that, upon the
whole view of the subject, feeling the firmest con-
viction that there is no Constitutional impediment
in the way of repealing the act in question, upon
the most fair and candid interpretation of the
Constitution : — believing that principles advanced
in opposition, go directly to the destruction of the
fundamental principle of the Constitution, the re-
sponsibility of all public agents to the people — ^that
they go to the establishment of a permanent cor-
poration of individuals invested witn ultimate cen*
serial and controlling power over all the depart-
ments of the Government, over legislation, execu-
tion, and decision, and irresponsible to the people ;
believing that these princij^es are in direct hostility
to the great principle of Representative Govern-
ment; believing that the courts formerly estab-
lished, were fully competent to the business they
had to perform, and tnat the present courts are
useless, unnecessary, and expensive ; believing that
the Supreme Court has heretofore discharged all
the duties assigned to it in less than one month in
the year, and that its duties could be performed
in half that time ; considering the compensations
of the judges to be among the highest given to
any of the highest ofScers of the United States
for the services of the whole year ; considering
the compensations of all the judges greatly ex-
ceeding the services assigned them, as well as con-
sidering all the circumstances attending the sub-
stitution of the new system for the old one, by
increasing the number of judges, and compensa-
tions, and lessening their duties by the distribution
of the business into a great number of hands, d&c.,
while acting under these impressions, he should
vote against the motion now made for striking out
the first section of the repealing bill.
Friday, February 19.
A petition of sundry citizens of Huntingdon
county, in the State of Pennsylvania, was present-
ed to the House and read, praying a revision and
amendment of the act of Congress passed on the
eighteenth of June, one thousand seven hundred
and ninety-eight, entitled "An act supplementary
to, and to amend the act, entitled ''An act to estab-
lish an uniform rule of naturalization, and to re-
peal the act heretofore passed on that subject." —
Referred to the Committee of the Whole House
to whom was committed, on the twenty-suxth ulti-
mo, the bill for revising and amending the acts
concerning naturalization.
On motion made and seconded that the House
do come to the following resolutions:
Raolved, by the Senate and House of Repreaenta'
tivee of the iMited Staha of America in Congress as-
sembkdy two4hirds of both Houses concurring, That
603
HISTORY OF CONGRESS.
604
H. OP R. '
Judiciary System,
February, 1802.
the following articles be proposed to the Legislatures
of the several States, as amendments to the Constitu-
tion of the United States, which, when ratified by
three-fourths of the said Legislatures, shall be valid as
part of the Constitution, to wit :
1st. That the State Legislatures shall, from time to
time, divide each State into districts, equal to the whole
number of Senators and Representatives from such
State in the Congress of the United States ; and shall
direct the mode of choosing an Elector of President and
Vice President in each of the said districts, who shall
be chosen by citizens having the qualifications requisite
for Electors of the most numerous branch of the State
Legislature ; and that the districts, so to be constituted
shiJl consist, as nearly as may be, of contiguous terri-
tory, and of equal proportion of population, except where
there may be any detached portion of territory, not of
itself sufficient to form a district, which then shall be
annexed to some other portion nearest thereto; which
districts, when so divided, shall remain unalterable un-
til a new census of the United States shall be taken.
2d. That, in fdl future elections of President and
Vice President, the persons voted for shall be particu-
larly designated, by declaring which is voted for as
President, and which as Vice President
Ordered^ That the said motion, together with
the resolutions of the Legislature of the State of
New York, proposing amendments to the Consti-
tution of the United States, respecting the choice
of a President and Vice President, which were
read and ordered to lie on the table on the fifteenth
instant, be referred to the Committee of the Whole
House on the state of the Union.
JUDICIARY SYSTEM.
The House asain resolved itself into a Commit-
tee of the Whole House on the bill sent from the
Senate, entitled ''An act to repeal certain acts*re-
specting the organization of the Courts of the Uni-
ted States and for other purposes."
Mr. BATARD.^-Mr. Chairman, I must be al-
lowed to express my surprise at the course pur-
sued by the honorable gentleman from Virgmia,
(Mr. Giles.) in the remarks which he has made
on the subject before us. I had expected that he
would have adopted a different line of conduct.
I had expected it as well from that sentiment of
magnanimity which ought to have been inspired
by a sense of the high ground he holds on the
floor of this House, as from the professions of a
desire to conciliate, which he has so repeatedly
made during the session. We have been invited
CO bury the hatchet, and brighten the chain of
peace. We were dispo&ed to meet on middle
ground. We had assurances from the gentleman
that he would abstain from reflections on the past,
and his only wish was that we might unite in
future in promoting the welfare of our common
country. We confided in the gentleman's sin-
cerity, and cherished the hope, that if the divis-
ions of party were not banished from the House,
its sfjirit wotild be less intemperate. Such were
our impressions, when the mask was suddenly
thrown aside, and we saw the torch of discord
lighted and blazing before our eyes. Every effort
has been made to revive the animosities of the
House, and inflame the passions of the nation. I
am at no loss to perceive why this course has been
pursued. The gentleman has been unwilling to
rely upon the strength of his subject, and nas
therefore determined to make the'measurea party
question. He has probably secured success, but
would it not have been more honorable and more
commendable to have left the decision of a great
Constitutional question to the understanding, and
not to the prejudices of the House? It vras my
ardent wish to discuss the subject with calmness
and deliberation, and I did intend to avoid every
topic which could awaken the sensibility of party.
Tnis was' my temper and design when I took my
seat yesterday. It is a course at present we are
no longer at liberty to pursue. The gentleman
has wandered far, very far, from the points of the
debate, and bias extended his animadversions to
all the prominent measures of the former Admin-
istrations. In following him through his prelim-
inary observations, I necesssarily lose sight of the
bill upon your table.
The gentleman commenced his strictures with
the philosophic observation, that it was the fate
of mankind to hold different opinions as to the
form of government which was preferable. That
some were attached to the monarchal, while oth-
ers thought the republican more eligible. This.
as an abstract remark, is certainly true, and could
have furnished no ground of offence, if it had not
evidently appeared that an allusion was designed
to be made to the parties in this country. Does
the senileman suppose that we have a less lively
recollection than nimself of the oath which we
have taken to support the Constitution ; that we
are less sensible of the spirit of our Government,
or less devoted to the wishes of our constituents ?
Whatever impression it might be the intention ot
the gentleman to make, he does not believe that
there exists in the ctmntry an anti-republican
party. He will not venture to assert such an opin-
ion on the floor of this House. That there may
be a few individuals having a preference for mon-
archy is not improbable ; but will the gentleman
from Virginia, or any other gentleman, aflirm in
his place, that there is a party in the country who
wish to establish monarchy ? Insinuations of this
sort belong not to the Legislature of the Union.
Their place is an election ground or an alehouse.
Within these walls they are lost; abroad, they
have an effect, and I fear are still capable of abu-
sing: the popular credulity.
We were next told or the parties which have
existed, divided by the opposite views of promo-
ting Executive power and guarding the rights of
the people. The gentleman did not tell us in
plain language, but he wished it to be understood,
that he and his friends were the guardians of the
people's rights, and that we were the advocates
of Executive power.
I know that this is the distinction of party which
some j^entlemen have been anxious to establish ;
but this is not the ground on which we divide. I
am satisfied with the Constitutional powers of the
Executive, and never wished nor attempted to in-
crease them ; and I do not believe that gentlemen
on the other side of the House ever had a serion*
605
fflSTORY OF CONGRESS.
606
February, 1802.
Judiciary Syslem.
H. opR.
apprehension of danger from an increase of Exec-
utive authority. No, sir, our views as to the pow-
ers which do and ought to belong to the Genera!
and State governments, are the true sources of our
divisions. I co-operate with the party to which I
am attached, because I believe their true object
and end is an honest and efficient support of the
General Government, in the exercise of the legit-
imate powers of the Constitution.
I pray to God I may be mistaken in the opinion
I entertain as to the designs of gentlemen to
whom I am opposed. Those designs I believe
hostile to the powers of this Government. State
pride extinguishes a national sentiment. What-
ever is taken from this Government is given to
the States.
The ruins of this Government aggrandize the
States. There are States which are too proud to
be controlled ; whose sense of greatne&s and re-
source renders them indifferent to our protection,
and induces a belief^ that if no Greneral Govern-
ment existed, their influence would be more ex-
tensive, and their importance more conspicuous.
There are gentlemen who make no secret of an
extreme point of depression, to which the Gov-
ernment is to be sunk. To that point we are
rapidly progressing. But I would beg gentle-
men to remember, that human affairs are not to be
arrested in their course, at artificial points. The
impulse now given may be accelerated by causes
at present out of view. And when those who
DOW design well, wish to stop, they may find their
powers unable to resist the torrent. It is not true
that we ever wished to give a dangerous strength
to Executive power. While the Government was
in our hands, it was our duty to maintain its Con-
stitutional balance, by preserving the energies of
each branch. There never was an attempt to vary
the relation of its powers. The struggle was to
maintain the Constitutional powers of the Exec-
utive. The wild principles of French liberty
were scattered through the country. We had our
Jacobins and disorganizers. They saw no differ-
ence between a King and a President, and as the
people of France had put down their King, they
thought the people of America ought to put down
their President. They who considered the Con-
st! tntion as securing all the principles of rational
and practicable liberty, who were unwilling to
embark upon the tempestuous sea of revolution, in
pursuit ol visionary schemes, were denounced as
monarchists. A line was drawn between the
Government and the people, and the friends of
the Government were marked as the enemies of
the people. I hope, however, that the Govern-
ment and the people are now the same; and I
pray to God that what has been frequently re-
marked may not in this case be discovered to be
true, that they who have the name of people the
most often in their mouths, have their true inter-
ests the most seldom at their hearts.
•The honorable gentleman from Virginia wan-
dered to the very confines of the Federal Admin-
tration, in search of materials the most inflamma-
ble and most capable of kindling the passions of
his party.
He represents the Government as seizing the
first moment which presented itself to create a de-
pendent moneyed interest, ever devoted to its
views. What are we to understand by this re-
mark of the gentleman 1 Does he mean to say
that Congr&is did wrong in funding the public
debt ? Does he mean to say that the price of our
liberty and independence ought not to have been
paid ? Is he bold enough to denounce this meas-
ure as one of the Federal victims marked for de-
struction ? Is it the design to tell us that its day
has not yet come, but is approaching; and that
the funding system is to add to the pile of Fede-
ral ruins? Do I bear the gentleman sav we will
reduce the Army to a shadow; we will give the
Navy to the worms ; the Mint^ which presented
the people with the emblems or their liberty, and
of their sovereignty, we will abolish ; the revenue
shall depend upon the winds and waves; the judges
shall be made our creatures, and the threat work
shall be crowned and consecrated by relieving the
country from an odious and oppressive public
debt ? These steps, I presume, are to be taken in
progression. The gentleman will pause at each,
and feel the public pulse. As the fever increases
he will proceed, and the moment of delirium will
be seized to finish the great work of destruction.
The assumption of the State debts has been
made an article of distinct crimination. It has
been ascribed to the worst motives— ^to a design
of increasing a dependent moneyed interest. Is
it not well known that those debts were part of
the price of our Revolution ? That they rose in
the exifi^ency of our affairs, from the efforts of the
particular States, at times when the Federal arm
could not be extended to their relief? Each
State was entitled to the protection of the Union,
the defence was a common burden, and every
State had a right to expect that the expenses at-
tending its individual exertions in the general
cause, would be reimbursed from the public purse.
I shall be permitted further to add, that the Uni-
ted State?, having absorbed the sources of State
revenue, except direct taxation, which was re-
quired for the support of the State governments,
the assumption oi these debts was necessary to
save some of the States from bankruptcy.
The internal taxes are made one of tne crimes
of the Federal Administration. They were im-
posed, says the gentleman, to create a host of de-
pendents on Executive faVbr. This supposes the
past Administrations to have been not only very
wicked, but very weak. They laid taxes in order
to strengthen their influence. Who is so ignorant
as not to know, that the imposition of a tax would
create an hundred enemies for one friend ? The
name of excise was odious; the details of col-
lection were unavoidably expensive, and it was
to operate upon a part of the community least
disposed to support public burdens, and most ready
to complain of their weight. A little experience
will give the gentleman a new idea of the patron-
age of this Government. He will find it not that
dangerous weapon in the hands of the Adminis-
tration which ne has heretofore supposed it ; he
will probably discover that the poison is accom-
607
HISTORY OF CONGRESS.
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H. OF R.
Judiciary System,
FCBRnARY, 1802.
/panied by^ ils antidote^ and that an appoiotmeDt of
I the Government, while it gives to the Adminis-
tration one lazy friend, will raise up against it ten
active enemies. No ! The motive ascribed for
the imposition of the internal taxes is as unfounded
as it is uncharitable. The Federal Administra-
tion, in creating burdens to support the credit of
the nation, and to supply the means of its protec-
tion, knew that they risked the favor of those up-
on whom their power depended. They were wil-
ling to be the victims when the public good re-
quired.
f The duties on imports and tonnage furnished a
'precarious revenue — ^a revenue at all times ex-
posed to deficiency, from causes beyond our reach.
The internal taxes offered a fund less liable to be
impaired by accident — a fund which did not rob
the mouth of labor, but was derived from the
gratification of luxury. These taxes are an equit-
able distribution of the public burdens. Through
this medium the Western country is enabled to
contribute something to the expenses of a Gov-
ernment which has expended and dailv expends
such large sums for its defence. When these
taxes were laid they were indispensable. With
the aid of them it has been difficult to prevent an
increase of the public debt. And notwithstand-
ing the fairy prospects which now dazzle our
eyes, I undertake to say, if you abolish them this
session, you will be obliged to restore them or
supply tneir place by a direct tax before the end
of two years. Will the gentleman say, that the
direct tax was laid in order to enlarge the bounds
of patronage? Will he deny that this was a
measure to which we had been urged for years by
our adversaries, because they foresaw in it the
ruin of Federal power ? My word for it, no Ad-
ministration will ever be strengthened by a pat-
ronage united with taxes which the people are
sensible of paying.
We were next told, that to set an army an In-
dian war was necessary. The remark was ex-
tremely bald, as the honorable gentleman did not
allege a single reason for the position. He did
not undertake to state that it was a wanton war,
or provoked by the Government. He did not
even venture to deny, that it was a war of de-
fence, and entered into in order to protect our
brethren on the frontiers from the bloody scalping-
knife and murderous tomahawk of the savage.
What ought the Government to have done?
Ought they to have estimated the value of the
blood which probably would be shed, and the
amount of the devastation likely to be committed
before they determined on resistance? They
raised an army, and after great expense and vari-
ous fortune, tney have secured the peace and safe-
ty of the frontiers. But why was tbe Army men-
tioned on this occasion, unless to forewarn us of
the fate which awaits them, and to tell us that
their days are numbered ? I cannot suppose tbat
the gentleman mentioned this little army, distrib-
uted on a line of three thousand miles, for the pur-
pose of giving alarm to three hundred thousand
free and brave yeomanry, ever ready to defend the
liberties of the country.
The honorable gentleman proceeded to inform
the Committee, that the Government, availing it-
self of the depredations of the Algerines, created
a navy. Did the gentleman mean to insinuate
that this war was invited by the United States ?
Has he any documents or proof to render the sus-
picion colorable ? No, sir, he has none. He well
knows that the Algerine aggressions were ex-
tremely embarrassing to the Government. When
they commenced, we had no marine force to op-
pose to them. We had no harbors or places of
shelter in the Mediterranean. A war with these
pirates could be attended with neither honor nor
profit. It might cost a great deal of blood, and
m the end it might be feared that a contest so iar
from home, subject to numberless hazards and
difficulties, could not be maintained. What would
fentlemen have had the Government to do ? I
now there are those who are ready to answer :
abandon the Mediterranean trade. But would this
have done? The corsairs threatened to pass the
Straits, and were expected in the Atlantic. Nay,
sir, it was thought that our very coasts would not
have been secure.
Will gentlemen go further, and say that tbe
United States ought to relinquish their commerce.
It has been said that we ought to be cultivators
of the earth, and make the nations of Europe our
carriers. This is not an occasion to examine the
solidity of this opinion ; but I will only ask, ad-
mitting the Administration were disposed to turn
the pursuits of the people of this country from
the ocean to the land, whether there is a power in
the Grovernment, or whether there would be if
we were as strong as th^ Government of Turkey,
or even of France, to accomplish the object?
With a seacoast of seventeen hundred miles, with
innumerable harbors and inlets, with a people en-
terprising beyond example, is it possible to say.
you will have no ships or sailors, nor merchants ?
The people of this country will never consent to
give up their nayigatioa, and every Administra-
tion will find themselves constrained to provide
means to protect their commerce.
In respect to the Algerines, the late Adminis-
tration were singularly unfortunate. They were
obliged to fight or pay them. The true policy
was to hold a purse in one hand and a sword in
the other. This was the policy of the Govern-
ment. Every comm^cial nation in Europe was
tributary to these petty barbarians. It was not
esteemed. disgraceful. It was an affair of calcu-
lation, and the Administration made the best bar-
gain in their power. They have heretofore been
scandalized for paying tribute to a pirate, and
now they are criminated for preparing a few fri-
gates to protect our citizens from slavery and
chains ! Sir, I believe on this and many other
occasions, if the finger of Heaven had pointed out
a course, and the Government had pursued it, yet
that they would not have escaped the censure
and reproaches of their enemies.
We were told that the disturbances in Europe
were made a pretext for augmenting the Army
and Navy. I will not, Mr. Chairman, at present
go into a detailed view of the events which com-
609
HISTORY OF CONGRESS.
610
February, 180^
Judiciary System.
H. OP R.
pelled the GovernmeDt to put on the armor of de*
fence, and to resist by force the French aggres-
sions. All the world know the efforts which
were made to accomplish an amicable adjustment
of differences with that Power. It is enough to
state, that Ambassadors of peace were twice re-
pelled from the shores of France with ignominy
and contempt. It is enough to say, that it was
not till after we had drunk the cup of humiliation
to the dregs, that the national spirit was roused to
a manly] resolution, to depend only on their God
and their own courage for protection. What, sir,
did it grieve the gentleman that we did not crouco-
under the rod of the Mighty Nation, and, like the
petty Powers of Europe, tamely surrender our in-
dependence ? Would he have had the people of
the United Slates relinquish without a struggle
those liberties which had cost so much blood and
treasure? We had not, sir, recourse to arms, till
the mouths of our rivers were choked with
French corsairs; till our shores, and every har-
bor, were insultM and violated ; till half our com-
mercial capital had been seized, and no safety
existed for the remainder but tne protection of
force. At this moment a noble enthusiasm elec-
trized the country ; the national pulse beat high,
and we were prepared to submit to every sacri-
fice, determined only that our independence should
be the last. At that time an American was a
proud name in Europe; but I fear, much I fear,
that in the course we are now likely to pursue^
the time will soon arrive when our citizens
abroad will be ashamed to acknowledge their
country.
The measures of 1798 grew out of the public
feelings ; they were loudly demanded by the
public voice. It was the people who drove the
Government to arms, and not (as the gentleman
expressed it) the Government which pushed the
people to the X, Y, Z, of the political designs be-
fore they understood the A, B, C, of their political
principles.
But what, sir, did the gentleman mean by his
X. Y, Z? I must look for something very sig-
nificant— something more than a quaintness of
expression, or a play upon words — in what falls
from a gentleman of his learning and ability. Did
he mean that the despatches which contained
those letters were impostures, designed to deceive
and mislead the people of America — intended to
rouse a false spirit not justified by events ? Though
the gentleman had no respect for some of the char-
acters of that embassy ; though he felt no respect
for the Chief Justice, or the gentleman appointed
from South Carolina — two characters as pure, as
honorable, and exalted, as any the country can
boast of— yet I should have expected that he would
have felt some tenderness for Mr. Qerry^ in whom
his party had since given proofs of undiminished
confidence. Does the gentleman believe that Mr.
Oerry would have joined in the deception, and
assisted in fabricating a tale, which was to blind
his countrymen, and to enable the Government
to destroy their liberties? Sir, I will not avail
myself of the equivocations or confessions of Tal-
leyrand himself: I say these gentlemen will not
7lh Cow. — 20
dare publicly to deny what is attested by the hand
and seal of Mr. Gerry.
The truth of these despatches admitted, what
was your Government to do? Give us, say the
Directory, 1,200,000 livres for our own purse, and
purchase $15,000,000 of Dutch debt, (which was
worth nothing,^ and we will receive your Minis-
ters, and negotiate for peace.
It was only left to the Grovernment to choose
between an unconditional surrender of the honor
and independence of the country, or a manly
resistance. Can you blame, sir, (he Administra-
tion for a line of conduct which has reflected on
the nation so much honor, and to which, under
God. it owes its present prosperity ?
These are the events of the General Govern-
ment which the gentleman has reviewed, in suc-
cession, and endeavored to render odious or sus-
picious. For all this I could have forgiven him,
but there is one thing for which I will not, I can-
not, forgive him — I mean his attempt to disturb
the ashes of the dead ; to disturb the ashes of the
great and good Washinqton ! Sir, I might de-
grade by attempting to eulogize this illustrious
character. The work is infinitely beyond my pow-
ers. I will only say that, as long as exalted talents
and virtues confer honor among men, the name
of Washington will be held in veneration.
After, Mr. Chairman, the honorable member
had exhausted one quiver of arrows against the
late Executive, he opened another, equally poi-
soned, against the Judiciary. He has told us, sir,
that when the power of the Government was rap-
idly passing from Federal hands — after we had
heara the thunderine voice of the people which
dismissed us from tnetr service — we erected a
Judiciary, which we expected would afibrd us the
shelter of an inviolable sanctuary. The gentle-
man is deceived. We knew better, sir, the char-
acters who were to succeed us, and we knew that
nothing was sacred in the eyes of infidels. No,
sir, I never had a thought that anything belong-
ing to the Federal Government was holy in the
eyes of those gentlemen. I could never, there-
fore, imagine that a sanctuary could be built up
which would not be violated. I believe these gen-
tlemen regard public opinion, because their power
depends upon it ; but 1 believe they respect no ex-
istm^ establishment of the Government; and if
fublic opinion could be brought to support them,
have no doubt they would annihilate the whole.
I shall at present only say further, on this head,
that we thought the reorganization of the Judicial
system a useful measure, and we considered it as
a duty to employ the remnant of our power to the
best advantage of our country.
The honorable gentleman expressed his joy that
the Constitution had at last become sacred in our
eyes: that we formerly held that it meant every-
thing or nothing. I believe, sir, that the Consti-
tution formerly appeared different in our eyes from
what it appears in the eyes of the dominant party.
We formerly saw in it the principles of a fair and ,
goodly creation. We looked upon it as a source
of peace, of safety, of honor, ana of prosperit jr, to
the country. But now the view is cnanged ; it is
611
HISTORY OF CONaRESS.
612
H. OF R.
Judiciary System,
February. 1802.
the instrument of wild and dark destruction ; it is
a weapon whicli is to prostrate every establish-
ment to which the nation owes the unexampled
blessings which it enjoys.
The present state of the country is an unan-
swerable commentary upon our construcftion of
the Constitution. It is true that we made it mean
much ; and hope, sir, we shall not be taught by
the present Administration that it can mean even
worse than nothing.
The gentleman has not confined his animad-
versions to the individual establishment, but has
gone so far as to make the judges the subject of
personal invective. They have been charged with
naving transgressed the bounds of Judicial duty,
and become the apostles of a political sect. We
have heard of their travelling about the country
for little other purpose than to preach the Federal
doctrines to the people.
Sir, I think a judge should never be' a partisan.
No man would be more ready to condemn a judge
who carried his political prejudices or antipathies
on the bench. But I have still to learn that such
a charge can be sustained against the judges of
the United States.
The Constitution is the supreme law of the land,
and they have taken pains, in their charges to
fraud juries, to unfold and explain its principles.
Jpon similar occasions, they have enumerated
the laws which compose our criminal code, and
when some of those laws have been denounced by
the enemies of the Administration as unconstitu-
tional, the judges may have fell themselves called
upon to express their judgments upon that point,
and the reasons of their opinions.
So far, but no farther, I believe, the judges have
gone. In going thus far. they have done nothing
more than faithfully discharge their duty.
But if, sir, they have offended against the Con-
stitution or laws of the country, why are they
not impeached? The gentleman now holds the
sword of justice. The judges are not a privileged
order; they have no shelter but their innocence.
But, in any view, are the sins of the former judges
to be fastened upon the new Judicial system?
Would you annihilate a system because some men
under part of it had acted wrong? The Consti-
tution has pointed out a mode of punishing and
removing the men, and does not leave this miser-
able pretext for the wanton exercise of powers
which is now contemplated.
The honorable member has thought himself
justified in making a charge of a serious and
frightful nature against the judges. They have
been represented going about searching out vic-
tiins of the Sedition law. But no fact has been
stated ; no proof has been adduced, and the gen-
tleman must excuse me for refusing my belief to
the charge till it is sustained by stronger and bel-
ter ground than assertion.
If, however, Mr. Chairman, the eyes of the
gentleman are delighted with victims, if objects
of misery are grateful to his feelings, let me turn
his view from the walks of the judges to the track
of the present Executive. It is in this path we
see the real victims of stern, uncharitable, unre-
lenting power. It is here, sir. we see the soldier
who fought the banles of the Revolution ; who
spilt his blood and wasted bis strength to establish
the independenee of his country, deprived of the
reward of his services, and left to pine in penury
and wretchedness. It is along this path that you
may see helpless children crying for bread, and
gray hairs sinking in sorrow to tne grave ! It is
here that no innocence, no merit, no truth, no
services, can save the unhappy sectary who does
not believe in the creed of those in power. I have
been forced upon this subject, and before I leave
it, allow me to remark, that without inquiring
into the right of the President to make vacancies
in office, during the recess of the Senate, but ad-
mitting the power to exist, yet that it never was
ffiven by the Constitution to enable the Chief
Magistrate to punish the insults, to revenge the
wrongs, or to indulge the antipathies of the man.
Jf the discretion exists, I have no hesitation in
saying that it is abused when exerci&ed from any
other motives than the public good. And when
I see the will of a President precipitating from
office men of probity, knowledge, and talents,
against whom the community has no complaint
I consider it as a wanton and dangerous abuse of
power. And when I see men who have been the
victims of this abuse of power, I view them as
the proper objects of national sympathy and com-
miseration.
Among the causes of impeachment against the
judges, is their attempt to force the sovereignties
of the States to bow before them. We hare
heard them called an ambitious body politic; and
the fact I allude to has been considered as foil
proof of the inordinate ambition of the body.
Allow me to say, sir, the gentleman knows too
much not to know that the judges are not a body
politic. He supposed, perhaps, there was an odium
attached to the appellation, which it might serve
his purposes to connect witn the judges. But. sir.
how do you derive any evidence of the ambition
of the judges from their decision that the States
under our Federal compact were compellable to
do justice? Can it be shown, or even said, that
the judgment of the court was a false construc-
tion of the Constitution ? The policy of later
times on this point has altered the Constitution,
and, in my opinion, has obliterated its fairest fea-
tures. I am taught by my principles, that no
power ought to be superior to justice. It is not
that 1 wish to see the States humbled in dust and
ashes ; it is not that I wish to see the pride of any
man flattered by their degradation ; but it is that
I wish to see the great and the small, the soverngn
and the subject, bow at the altar of justice, and
submit to those obligations from which the Deity
himself is not exempt. What was the effect of
this provision in the Constitution ? It prevented
the States being the judges in their own cause.
and deprived them of the power of denying jus-
tice. Is there a principle of ethics more clear
than that a man ought not to be a judge in his own
cause, and is not the principle equally strong when
applied not to one man. but to a collective body ?
It was the happiness of our situation which ena-
613
HISTORY OF CONGRESS.
614
February, 1802.
Judiciary System.
H. ofR.
bled as to force the greatest State to sabmit to the
yoke of justice, and it would have been the glory
of the country in the remotest times, if the prin-
ciple in the Constitution had been maintamed.
What had the Slates to dread? Could they fear
injuiriice when opposed to a feeble individual?
Has a great man reason to fear from a poor one ?
^ And could a potent State be alarmed by the un-
founded claim of a single person ? For my part
I have always thought that an independent tribu-
nal ought to be provided to judge on the- claims
against this Government. The power ou^ht not
to be in our own hands. We are not impartial, and
are therefore liable, without our knowledge, to do
wrong. I never could see why the whole com-
munity should not be bound by as strong an obli-
/ Ration to do justice to an individual, as one man
^ is bound to do it to another.
In England the subject has a better chance for
justice against the Sorereign than in this country
a citizen has against a State. The Crown is never
its own arbiter, and they who sit in judgment ha;re
no interest in the event of their decision.
The judges, sir, have been criminated for their
conduct in relation to the Sedition act, and have
been charged with searching for victims who
were sacrificed under it. The charge is easily
made, but has the gentleman the means of sup-
porting it? It was the evident design of the gen-
tleman to attach the odium of the Sedition law to
the Judiciary ; on this score the judges are surely
innocent. They did not pass the act; the Legis-
lature made the law, and ihey were obliged by
their oaths to execute it. The judges decided the
law to be Constitutional, and I am not now going
to agitate the question. I did hope, when the law
passed, that its effect would be usetul. It did not
touch the freedom of speech, and was designed
only to restrain the enormous abuses of the press.
It went no further than to punish malicious false-
hoods, published with the wicked intention of de-
stroying the Grovernment. No innocent man ever
did or could have suffered under the law. No
punishment could be inflicted till a jury was sat-
isfied that a publication was false, and that the
{>arty charged, knowing it to be raise, had pub-
ished it with an evil desig^n.
The misconduct of the judges, however, on ihis
subject, has been considered by the gentleman the
more aggravated, by an attempt to extend the
principles of the Sedition act, by an adoption of
those of the common law. Connected with this
subject, such an attempt was never made by the
judges. They have held generally, that the Con-
stitution of the United States wa^ predicated upon
an existing common law. Of the soundness of
that opinion. I never had a doubt. •! should
scarcely j[o too far, were I to say, that, stripped of
the cotnKon law, there would be neitner Consti-
tution n# Government. The Constitution is un-
intelligible without reference to the common law.
And were we to go into our courts of justice
with the mere statutes of the United States, not a
step could be taken, not even a contempt could be
punished. Those statutes prescribe no forms of
pleadings; they contain no principles of evidence ;
they furnish no rule of property. If the common
law does not exist in most cases, there is no law
but the will of the judge.
I have never contended that the whole of the
common law attached to the Constitution, but
only such parts as were consonant to the nature
and spirit of our Government. We have nothing
to do with the law of the Ecclesiastical Establish-
ment, nor with any principle of monarchical ten-
dency. What belongs to us, and what is unsuit-
able, is a question for the sound discretion of the
judges. The principle is analogous to one which
IS found in the writings of all jurists and commen-
tators. When a Colony is planted, it is establish-
ed subject to such parts of the law of the mother
country as are applicable to its situation. When
our forefathers colonized the wilderness of Amer-
ica, they brought with them the common law of
England. They claimed it as their birthright,
and they left it as the most valuable inheritance
to their children. Let me say. that this same
common law, now so much despised and villified,
is the cradle of the rights and liberties which we
now enjoy. It is to the common law we owe our
di^itinction from the colonists of Franoe, of Portu-
gal, and of Spain. How long is it since we have
discovered the malignant qualities which are now
ascribed to this law ? Is there 9, State in the
Union which has not adopted it, and in which it
is not in force? Why is it refused to the Federal
Constitution? Upon the same principle that
every power is denied which tends to invigorate
the Government. Without this law the Constitu-
tion becomes, what perhaps many gentlemen wish
to sec it, a dead^letter.
For ten years it has been the doctrine of our
courts, that the common law was in force, and yet
can gentlemen say, that there has been a victim
who has suffered under it? Many have experien-
ced its protection, none can complain of its op-
pression.
In order to demonstrate the aspiring ambition
of this body politic, the Judiciary, the honorable
gentleman stated with much emphasis and feeling
that the judges had been hardy enough to send
their mandate into the Executive cabinet. Was
the gentleman, sir, acquainted with the fact when
he made this statement ? It differs essentially from
what I know I have heard upon the subject. I
shall be allowed to state the fact.
Several commissions had bten made out by the
late Administration fur justices of the peace ofi
this Territory. The commissions were complete ; ^
they were signed and sealed, and left with the
clerks of the Office of State to be handed to the
persons appointed. The new Administration
found them on the Clerk's table, and thought
proper to withhold them. These officers are not
dependent on the will of the President. The per-
sons named in the commissions considered that
their appointments were complete, and that the
detention of their commissions was a wrong, and
not justified by the legitimate authority of the Ex-
ecutive. They applied to the Supreme Court for
a rule upon the Secretary of State, to show cause
why a mandamus shoula not issue, commanding
»•
615
HISTORY OF CONGRESS.
616
H. OP R.
Judiciary System,
Februart, 1802.
him to deliver up the commissions. Let me ask,
sir, what coald the judges do 1 The rule to show
cause was a matter of course upon a new point, at
least doubtful. To have denied it, would have
been to shut the doors of justice against the par-
ties. It concludes nothing, neither the jurisdic-
tion nor the regularity of the act. The judjres
did their duty; they gave an honorable proof of
their independence. They listened to trie com-
plaint of an individual against your Pre^dent,
and have shown themselves disposed to grant re-
dress against the greatest man in th&Government.
If a wrong has been committed, and the Constitu-
tion authorizes their interference, will gentlemen
say that the Secretary of State, or even the Presi-
dent, is not subject to law? And if they violate
the law, where can we apply for redress but to our
courts of justice? But, sir, it is not true that the
judges issued their mandate to the Executive;
they have only called upon the Secretary oi State
to show them that what he has done is right. It
is but an incipient proceeding which decides
nothing.
Mr. Giles rose to explain. He said that the
gentleman from Delaware had ascribed to him
many things which he did not say, and had after-
waras undertaken to refute them. He had only
said that mandatory process had issued ; that the
course pursued by the court indicated a belief by
them that they had jurisdiction, and that in the
event of no cause being shewn, a mandamus would
issue.]
Mr. Batard. — I stated the gentleman's words
as I took them down. It is immaterial whether
the mistake was in the gentleman's expression or
in my understanding. He has a right to explain,
and I will take his position as he now states it.
I deny, sir, that mandatory process has issued.
Such process would be imperative, and suppose a
jurisdiction to exist ; the proceeding which has
taken place, is no more than notice of the appli-
cation for justice made to the court, and allows
the party to show, either that no wrong has been
committed, or that the court has no jurisdiction
over the subject. Even, sir, if the rule were made
absolute, and the mandamus issued, it would not
be definitive, but it would be competent for the
Secretary in a return to the writ, to justify the act
which has been done, or to show that it is not a
subject of judicial cognizance.
It is not till after an insufficient return that a
peremptory mandamus issues. In this transac-
tion, so far from seeing anything^ culpable in the
conduct of your judges, I think, sir, that they
have ^iven a strong proof of the value of that
Constitutional provision which makes them inde-
pendent. They are not terrified by the frowns of
Executive power, and dare to judjje between the
rights of a citizen and the pretensions of a Presi-
dent.
I believe, Mr. Chairman, I have gone through
most of the preliminary remarks which the hon-
orable gentleman thought proper to make before
he proceeded to the consideration of those points
which properly belong to the subject before the
.Committee. I have not supposed the topics I
have been discussing had any connexion with the
bill on your table ; but I felt it as a duty not to
leave unanswered charges against the former Ad-
ministrations and our judges, of the most insidi-
ous tendency, which I know to be unfounded,
which were calculated and designed to influ-
ence the decision on the measure now |>roposed.
Why, Mr. Chairman, has the present subject been
combined with the Army, the Navy, the internal
taxes and the Sedition law? Was it to involve
them in one common odium, and consign them to
one common fate ? Do I see in the preliminary
remarks of the honorable member the title-page
of the volume of measures which are to be pur-
sued ? Are gentlemen sensible of the extent to
which it is designed to lead them ? They are
now called on to reduce the Army, to diminish
the Navy, to abolish the Mint, to destroy the inde-
pendence of the Judiciary, and will they be able
to stop when they are next required to blot out
the public debt, tnat hateful source of moneyed
inl^est and aristocratic influence? Be assured,
sir, we see but a small part of the system wbicli
has been formed. Gentlemen know tne ad vantage
of progressive proceedings, and my life for it. if
they can carry the people with them, their career
will not be arrested while a trace remains of what
was done by the former Administrations.
There was another remark of the honorable
member which I must beallowed to notice. The
pulpit, sir, has not escaped invective. The min-
isters of the Gospel have been represented, like
the judges, forgetting the duties of their calling,
and employed in disseminating the heresies of
Federalism. Am I then, sir, to understand that
religion is also denounced, and that your churches
are to be shut up ? Are we to be deprived, sir.
both oi law and Gospel ? Where do the princi-
ples of the gentlemen end ? When the system
of reform is completed, what will remain? I
pray God that this flourishing country, which,
under his Providence, has attained such a height
of prosperity, may yet escape the desolation suf-
fered by another nation, by the practice of similar
doctrines.
I beg pardon of the Committee for having con-
sumed so much time upon points so little connect-
ed with the subject of the debate. Till I heard
the honorable member from Virginia yesterday. I
was prepared only to discuss the merits of the bill
upon which you are called to vote. His prelimi-
nary remarks were designed to have an eflTect
which I deemed it material to endeavor to coun-
teract, and I therefore yielded to the necessity of
pursuing the course he had taken, though I 'was
conscious of departing very far from the subject
before the Committee. To the discussion of that
subject I now return with great satisfaction, and
shall consider it under the two views it naturally
presents; the constitutionality and the expediency
of the measure. I find it most convenient to con-
sider first, the question of expediency, and shall
therefore beg leave to invert the natural order of
the inquiry.
To show the inexpediency of the presient bilL
I shall endeavor to prove the expediency of the
€17
HISTORY OF CONGRESS.
618
February, 1803.
Judiciary System.
H. OP R.
judicial law of the last session. In doing this it
will be necessary to take a view of the leading feat-
ures of the pre-existing system, to inquire into its
defects, and to examine how far the erils com-
1>lained of were remedied by the provisions of the
ate act. It is not my intention to enter into the
details of the former system ; it can be necessary
only to state so much as will distinctly shew its
defects.
There existed, sir, a Supreme Court, having
original cognizance in a few cases, but principally
a court of appellate jurisdiction. This was the
^reat national court of dernier resort. Before this
tribunal, questions of unliiociited magnitude and
consequence, both of a civil and political nature,
received their final decision; and I may be allowed
to call it the national crucible of justice, in which
the judgments of inferior courts were to be re-
duced to their elements and cleansed from every
impurity. There was a Circuit Court, composed
in each district of a judge of the Supreme Court
and the district judge. This was the chief court
of business both of a civil and criminal nature.
In each district a court was established for af-
fairs of revenue, and of admiralty and maritime
jurisdiction. It is not necessary ior the purp05es
of the present argument to give a more extensive
outline of the former plan of our Judiciary. We
discover that the judges of the Supreme Court,
in consequence of their composing a part of the
circuit courts, were obliged to travel from one
extremity to tne other of this extensive country.
In order to be in the court-house two months m
the year they were forced to be upon the road
six. The Supreme Court being the court of last
resort, having final jurisdiction over questions of
incalculable importance, ought certainly to be
filled with men not only of probity, but of great
talents, learning, patience, and experience. The
union of these qualities, is rarely, very rarely
found in men who have not passed the meridian
of life. My Lord Coke tells us no man is fit to
be a judge until he has numbered the lucubrations
of twenty years. Men of studious habits are sel-
dom men of strong bodies. In the course of things
it could not be expected that meirfit to be judges
of your Supreme Courts would be men cap&ble
of traversing the mountains and wildernesses of
this extensive country ? It was an essential and
^eat defect in this court, that it required in men
the combination of qualities, which it is a phe-
nomenon to find united. It required that they
should possess the learning and experience of
years and the strength and activity of youth. I
may say further, Mr. Chairman, that this court,
from its constitution, tended to deterioration and
not to improvement. Your judges, instead of
being in their closets and increasing by reflection
and study their stock of wisdom and knowledge,
had not even the means of repairing the ordinary
waste of time. Instead of becoming more learned
and more capable, they would gradually lose the
fruits of their former industry^. Let me ask if this
was not a vicious construction of a court of the
highest authority and greatest importance in the
nation ? In a court from which no one had an I
appeal and to whom it belonged to establish the
leading principles of national jurisprudence ?
In the constitution of this court, as a court of
last resort, there was another essential defect.
The appeals to this court are from the circuit
courts. The circuit court consists of the district
judge, and a jud^e of the Supreme Court. In
cases where the district judge is interested, where
he has been counsel, and where he has decided in
the court below, the jud^e of the Supreme Court
alone composes the circuit court. What, then, is
substantially the nature of this appellate jurisdic-
tion ? In truth and practice, the appeal is from
a member of a court to the body of the same
court. The circuit courts are but emanations of
the Supreme Court. Cast your eyes upon the
Supreme Court ; you see it disappear, and its mem-
bers afterwards arising in the shape of circuit
judges. Behold the circuit judges; they vanish,
and immediately you perceive the form of the
Supreme Court appearing. There is, sir, a magic
in this arrangement which is not friendly to jus-
tice. When the Supreme Court assembles, ap-
peals come from the various circuits of the United
States. There are apneals from the decisions of
each judge. The judgments of each member
pass in succession under the revision of the whole
body. Will not a judge, while he is examining
the sentence of a brother to-day, remember that
that brother will sit in judgment upon his pro-
ceedings to-morrow ? Are the members of a court
thus constituted, free from all motive, exempt from
all bias, which could even remotely influence opin-
ion on the point of strict right ? and yet let me
ask emphatically, whether this court, being the
court or final resort, should not be so constituted
that the world should believe and every suitor be
satisfied, that in weighing the justice of a cause,
nothing entered the scales but its true merits?
Your Supreme Court, sir, I have never consid-
ered as anything more than the judges of assize
sitting in oank. It is a system with which per-
haps I should find no fault, if the judges sitting
in bank did not exercise a final jurisdiction. Po-
litical institutions should be so calculated as not
to depend upon the virtues, but to guard against
the vices and weaknesses of men. It is possible
that a judge of the Supreme Court would not be
infiuenced by the esprit du corps^ that he would
neither be gratified ny the affirmance, nor morti-
fied by the reversal of his opinions; but this, sir,
is estimating the strength and purity of human
nature upon a possible, but not on its ordinary
scale.
I believe, said Mr. B., that in practice the for-
mation of the Supreme Court frustrated, in a
great degree, the design of its institution. I be-
lieve that many suitors were discouraged from
seeking a revision of the opinions of the circuit
court, by a deep impression of the difficulties to
be surmounted in obtaining the reversal of the
judgment of a court from the brethren of the
judge who pronounced the judgment. The ben-
efit of a court of appeals, well constituted, is not
confined to the mere act of reviewing the sentence
of an inferior court ; but is more extensively use-
619
HISTORY OP CONGRESS.
620
H. OF R.
Judiciary System,
Februart, 1802.
ful by the general operation of the knowledge of
its existence upon inferior courts. The power of
uncontrollable decision is of the most delicate and
dangerous nature. When exercised in the courts,
it is more formidable than by any other branch of
our Government. It is the Judiciary only which
can reach the person, the property, or life of an
individual. The exercise of tneir power is scat-
tered over separate cases, and creates no common
cause. The great safety under this power arises
from the right of appeal. A sense of this right
combines the reputation of the judge with the jus-
tice of the cause. In my opinion, it is a strong
proof of the wisdom of a Judicial system when
few causes are carried into the court of the last
resort. I would say, if it were not paradoxical,
that the very existence of a court of appeals ought
to destroy the occasion for it. The conscience of
the judge, sir, will no doubt be a great check upon
him in the unbounded field of discretion created
by the uncertainty of law; but I should, in gen-
eral cases, more rely upon the effect produced by
his knowledge, that an inadvertent or designed
abuse of power was liable to be corrected by a
superior tribunal. A court of appellate jurisdic-
tion, organized upon sound principles, should ex-
istf though few causes arose for their decision; for
it is surely better to have a court and no causes,
than to have causes and no court. I now pro-
ceed, sir, to consider the defects which are plamly
discernable, or which have been discovered by
practice in the constitution of the circuit courts.
These courts, from information which I have re-
ceived, I apprehend were originally constructed
upon a fallacious principle. I have heard it stated
that the design oi placing the judges of the Su-
preme Court in the circuit courts, was to estab-
lish uniform rules of decision throughout the
United States. It was supposed that the presid-
ing judges of the circuit courts, proceeding from
the same body, would tend to identify the princi-
files and rules of decision in the several districts,
n practice, a contrary effect has been discovered
to be produced by tne peculiar organization of
these courts. In practice we have found not only
a want of uniformity of rule between the different
districts, but no uniformity of rule in the same dis-
trict. No doubt there was an uniformity in the de-
cisions of the same judge; but as thesame judge sel-
dom sat twice successively in the same district, and
sometimes not till after an interval of two or three
years, his opinions were forgotten or reversed be-
fore he returned. The judges were not educated
in the same school. The practice of the courts,
the forms of proceeding, as well as the rules of
property, are extremely various in the different
Quarters of the United States. The lawyers of
the Eastern, the Middle, and Southern States, are
scarcely professors of the same science. These
courts were in a state of perpetual fluctuation.
The successive terms gave you courts in the same
district, as different from each other as those of
Connecticut and Virginia. No system of practice
could grow up, no certainty of rule could be estab-
lished. The seeds sown in one term scarcely
vegetated before they were trodden under foot.
The condition of a suitor was terrible ; the ground
was always trembling under his feet. The opia-
ion of a former judge was no precedent to his
successor. Each considered himself bound to fol-
low the light of his own understanding. To ex-
emplify these remarks, I will take the liberty of
stating a case which came under my own oleer-
vation. An application before one judge vras
made to quash an attachment in favor of a subse-
quent execution creditor; the application was re-
sisted upon two grounds, and the learned judge,
to whom the application was first made, express-
in? his opinion in support of both grounds, dis-
missed the motion. At the succeeding court, a
different judge presided, and the application was
renewed and answered upon the same pounds.
The second learned judge was of opinion, that
one point has no validity, but he considered the
other sustainable, and was about also to dismiss
the motion, but upon being pressed, at last con-
sented to ^rant a rule to show cause. At the third
term, a third learned judge was on the bench, and
though the case was urged upon its former prin-
ciples, he was of opinion, that both answers to the
application were clearly insufficient, and accord-
ingly quashed the attachment. When the opin-
ions of his predecessors were cited, he replied, that
every man was to be saved by his own faith.
. Upon the opinion of one judge, a suitor would
set out in a long course of proceeding's, and after
losing much time and wasting much money, he
would be met by another judge, who would tell
him he had mistaken his road, that he must return
to the place from which he started, and pursue a
different track. Thus it happened as to tne chan-
cery process to compel the appearance of a defend-
ant. Some of the judges considered themselves
bound by the rules in the English bookn, while
others conceived that a power belonged to the
court, upon the service ot a subpoena, to make a
short rule for the defendant to appear and answer,
or that the bill should be taken pro confesso. A
case of this kind occurred where much embar-
rassment was experienced. In the circuit court
for the district of Pennsylvania, a bill in chancery
was filed against a person, who then happened to
be in that district, but whose place of residence
was in the Northwestern Territory. The sub-
poena was served, but there was no answer nur
appearance. The court to which the writ was
returned, without difficulty, upon an application,
granted a rule for the party to appear and answer
at the expiration of a limited time, or that the bill
be taken pro confesso, A personal service of this
rule being necessary, the complainant was obliged
to hire a messenger to travel more than a thoa-
sand miles to serve a copy of the rule. At the
ensuing court affidavit was made of the service,
and a motion to make the rule absolute. The
scene immediately changed, a new judge presi-
ded, and it was no longer the same court.
The authority was called for to grant such a
rule. Was it warranted by anv act of Congress,
or by the practice of the State i It was answered
there is no act of Congress — the State has no
court of chancery. But this proceeding was in-
621
HISTORY OF CONGRESS.
622
February, 1802.
Judiciary System,
H. OF R.
stituted, and has been brought to its present stage
at considerable' expense, under the direction of
this court. The judge knew of no power the
court had to direct the proceeding, and he did not
consider that the complainant could have a de-
cree upon his bill without goine through the long
train of process found in the books of chancery
practice. The complainant took this course, and
at a future time was told by another jud^e, that
he was incurring an unnecessary loss of time and
money, and that a common rule would answer
his purpose. I ask you, Mr. Chairman, if any
system could be devised more likely to produce
vexation and delay ? Surely, sir, the law is un-
certain enough in itself, and its paths sufficiently
intricate and tedious not to require that your suit-
ors should be burdened with additional embar-
rassments by the organization of your courts.
The circuit is the principal court of civil and
criminal business; the defects of this court were,
therefore, most generally and sensibly felt. The
high characters of the judges at first brought suit-
ors into the courts; but the business was gradu-
ally declining, though causes belonging to the ju-
risdiction of the courts were multiplving, the con-
tinual oscillation of the court baffled all conject-
ure as to the correct course of the proceeding or
the event of a cause. The law ceased to be a
science. To advise your client it was less im-
portant to be skilled m the books than to be ac-
quainted with the character of the judge who
was to preside. When the term approached, the
inquiry was, what jud^^e are we to have 1 What
is his character as a lawyer? Is he acquainted
with chancery law ? Is he a strict common law-
yer, or a special pleader ?
When the character of the judge was ascer-
tained, gentlemen would then consider the nature
of their causes, determine whether it was more
advisable to use means to postpone or to bring
them to a hearing.
The talents of the judges rather increased the
evil, than afforded a corrective for the vicious
constitution of these courts. They had not drawn
their knowledge from the same sources. Their
systems were different, and hence the character
of the court more essentially changed at each
successive term. These difficulties and embar-
rassments banished suitors from the court, and
without more than a common motive, recourse
was seldom had to the Federal tribunals.
I have ever considered it, also, as a defect in
this court, that it was composed of judges of the
highest and lowest grades. This, sir, was an un-
natural association ; the members of the court
stood on eround too unequal to allow the firm as-
sertion ofhis opinion to the district judge. Instead
of being elevated, he felt himself degraded by a
seat upon the bench of this court. In the district
court he was everything, in the circuit court he
was nothing. Sometimes he was obliged to leave
his seat, while his associate reviewed the judg-
ment which he had ^ven in the court below. In
all cases he was sensible that the sentences in the
court in which he was, were subject to the revis-
ion and control of a superior jurisdiction where
he had no influence, but the authority of which
was shared by the judge with whom he was act-
ing. No doubt in some instances the district
judge was an efficient member of this court, but
this never arose from the nature of the system,
but from the personal character of the man. I
have yer, Mr. Chairman, another fault to find
with the ancient establishment of tbe circuit
court*!. They consisted only of two judges, and
sometimes of one. The number was too small^
considering the extent and importance of the ju-
risdiction of the court. Will you remember, sir,
that they held the power of life and death, with-
out appeal? That their judgments were final
over sums of two thousand dollars, and their
original jurisdiction restrained by no limits of
value, and that this was the court to which ap-
peals were carried from the district court.
I have often heard, sir, that in a multitude of
counsel there was wisdom, and if the converse of
the maxim be equally true, this court must have
been very deficient. When we saw a single judee
rever.sing the judgment of the district court, the
objection was most striking, but the court never
had the weight which it ousht to have possessed,
and would have enjoyed had it been composed of
more members. But two judges belonged to the
court, and inconvenience was sometimes felt from
a division of their opinions. And this inconve-
nience was but poorly obviated by the provision
of the law that in such cases the cause should be
continued to the succeeding term, and receive its
decision from the opinion of the judge who should
then preside.
I do not pretend, Mr. Chairman, to have enu-
merated all the defects which belonged to the for-
mer judicial system. But I trust those which I
have pointed out, in the minds of candid men,
will justify the attempt of the Legislature to re-
vise that system, and to make a fairer experiment
of that part of the plan of our Constitution which
regards the judicial power. The defects, sir, to
which I have alluded, had been a \ons time felt
and often spoken of. Remedies had Frequently
been proposed. I have known the subject brought
forward in Congress or agitated in private, ever
since 1 have had the honor of a seat upon this
floor. I believe, sir, a great and just deference for
the author of the ancient scheme prevented any
innovation upon its material principles; there was
no gentlemen who felt that deference more than
myself, nor should I have ever hazarded a change
upon speculative opinion. But practice had dis-
covered defects which might well escape the most
discerning mind in planning the theory. The
original system could not be more than experi-
ment ; it was built upon no experience. It was
the first application of principles to a new state
of things. The first juaicial law displays great
ability, and it is no disparagement of the author
to say its plan is not perfect.
I know, sir, that some have said, and perhaps
not a few have believed, that the new system was
introduced not so much with a view to its im-
provement of the old, as to the places which it
provided for the friends of the Administration.
€23
HISTORY OF CONGRESS.
624
H. ofR.
Judiciary System.
February, 1802.
This is a calumny so notoriously false, and so
humble, as not to require nor to deserve an answer
fipon this floor. It cannot he supposed that the
paltry object of providing for sixteen unknown
<nen could have ever offered an inducement to a
great party basely to violate their duly, meanly
to sacrifice their character, and foolishly to fore-
go all future hopes.
I now come, Mr. Chairman, to examine the
changes which were made by the late law. This
subject has not been correctly understood. It has
everywhere been erroneously represented. I have
heard much said about the additional courts crea-
ted by the act of last session. I perceive them
spoken of in the President's Message. In the
face of this high authority, I undertake to state,
that .no additional court was established by that
law. Under the former system there was one
Supreme Court, and there is but one now. There
were seventeen district courts, and there are no
more now. There was a circuit court held in
each district, and such is the case at present.
Some of the district judges are directed to hold
their courts at new places, but there is still in
each district but one district court. What, sir,
has been done? The unnatural alliance between
the supreme and district courts has been severed,
but the jurisdiction of both these courts remains
untouched. The power or authority of neither of
them has been augmented or diminished. The
jurisdiction of the circuit court has been extend-
ed to the cognizance of debts of four hundred
dollars, and this is the only material change in the
power of that court. The chief operation of the
late law is a new organization of the circuit courts.
To avoid the evils of the former plan, it became
necessary to create a new corps of judges. It was
considered that the Supreme Court ought to be
stationary, and to have no connexion with the
judges over whose sentences they had an appel-
late jurisdiction.
To have formed a circuit court out of the dis-
trict judges, would have allowed no court of ap-
peal from the district court, except the Supreme
Courtj which would have been atteivded. with
great inconvenience. But this scheme was op-
posed by a still greater difficulty. In many dis-
tricts the duties of the judge require a daily at-
tention. In all of them business of great import-
ance may on unexpected occurrences require his
presence.
This plan was thought of; it was well-exam-
ined and finally rejected, in consequence of strong
objections to which it was liable. Nothing there-
fore remained but to compose the circuit court of
judges distinct from those of the other courts.
Admitting the propriety of excluding from this
court the judges of the supreme and district
courts, I think the late Congress cannot be accused
of any wanton expense, nor even of a neglect of
economy in the new establishment. This exten-
sive country has been divided into six circuits,
and three judges appointed for each circuit. Most
of the judges have twice a year to attend a court
in three States, and there is not one of them who
has not to travel further, and who in time will not
have more labor to perform than any judge of the
State courts. When we call to mind that the
jurisdiction of this court reaches the life of the
citizen, and that in civil cases its judgments are
final to a large amount^ certainly it will not be
said that it ought to have been composed of less
than three judges. One was surely not enough,
and if it had been doubtful whether two were not
sufficient, the inconvenience which would bare
frequently arisen from an equal division of opin-
ion, justifies the provision which secures a deter-
mination in all cases.
It was, additionally, very material to place on
the bench of this court a judge from each State.
as the court was in general bound to confortn to
the law and the practice of the several States.
I trust, sir, the Committee are satisfied that the
number of judges which compose the circuit court
is not too great, and that the Legislature would
have been extremely culpable to have committed
the high powers of this court to fewer hands.
Let me now ask, if the compensation allowed to
these judges is extravagant? It is little more
than half the allowance made to the judges of the
Supreme Court. It is but a small proportion of
the ordinary practice of those gentlemen of the
bar, who are fit, and to whom we ought to look
to fill the places. You have given a salary of two
thousand dollars. The puisne judees of Penn-
sylvania, I believe, have more. When you de-
duct the expenses of the office, you will leave but
a moderate compensation for service, but a scanty
provision for a family. When, Mr. Chairman,
gentlemen cooly consider the amendments of the
late law, I flatter myself their candor will at least
admit that the present modification was fairly de-
signed to meet and remedy the evils of the old
system.
The Supreme Court has been rendered station-
ary. Men of age, of learning, and of experience,
are now capable of holding a seat on the bench ;
they have time to mature their opinions in causes
on which they are called to decide, and they have
leisure to devote to their books, and to augment
their store of knowledge. It was our hope, by
the present establishment of the court, to render
it the future pride, and honor, and safety of the
nation. It is this tribunal which must stamp
abroad the judicial character of our country. It
is here that ambassadors and foreign agents resort
for justice; and it belongs to this high court to
decide finally, not only on controversies of unlimi-
ted value between individuals, and on the more
important collision of State pretensions, but also
upon the validity of the laws of the States, and of
this Government. Will it be contended that such
great trusts ought to be reposed in feeble or inca-
pable hands? It has been asserted that this court
will not have business to employ it. The asser-
tion is supported neither by what is past, nor by
what is liKely to happen. During the present
session of Congress, at their last term, the court
was fully employed for two weeks in the daily
hearing of causes. But its business must increase.
I'here is no longer that restraint upon appeals
from the circuit court, which was imposed by the
625
fflSTORT OF CONGRESS.
626
February, 1802.
Judiciary System.
H.opR.
authority of the judge of the court to which the
appeal was to be carried ; no longer will the ap-
prehension of a secret unavoidable bias in favor
of the decision of a member of their own body,
shake the confidence of a suitor, in resorting to
this court, who thinks that justice has not been
dooe to him in the court below. The progressive
increase of the wealth and population of the coun-
try, will unavoidably swell the business of the
court. But there is a more certain and unfailing
source of employment, which will arise in the ap-
peals from tne courts of the National Territory.
From the courts of original cognizance in this
Territory, it affords the only appellate Jurisdiction.
If gentlemen will look to the state of property of
a vast amount in this city, they must oe satisfied
that the Supreme Court will nave enough to do
for the money which is paid them.
Let us next consider, sir, the present state of
the circuit courts.
There are six courts, which sit in twenty-two
districts, each court visits at least three districts,
some four. The courts are now composed of
three judges of equal power and dignity. Stand-
ing on equal ground, their opinions will be inde-
pendent and firm. Their number is the best for
consultation, and they are exempt from the incon-
venience of an equal division of opinion. But
what I value most, and what was desigoed to rem-
edy the great defect of the former system, is the
identity which the court maintains. Each dis-
trict has now always the same court. Each dis-
trict will hereafter have a system of practice and
uniformity of decision.' The judges of each cir-
cuit will now study, and learn, and retain the laws
and practice of their respective districts. It never
was intended, nor is it practicable, that the same
rule of property or of proceeding should prevail
from New Hampshire to Georgia. The old courts
were enjoined to obey the laws of the respective
States. Those laws fluctuate with the will of the
State Legislatures, and no other uniformity could
ever be expected, but in the construction of the
Constitution and statutes of the United States.
This uniformity is still preserved by the control
of the Supreme court over the courts of the cir-
cuits. Under the present establishment, a ration-
al system of jurisprudence will arise. The prac-
tice and local laws of the different districts may
vary, but in the same district they will be uniform.
The practice of each district will suggest improve-
ments to the others, the progressive adoption of
which will in time assimilate the systems of the
several districts.
It is unnecessary, Mr. Chairman, for me to say
anything in relation to the district courts. Their
former jurisdiction was not varied by the law of
the last session.
It has been my endeavor, sir, to ^ive a correct
idea of the defects of the former judicial plan, and
of the remedies for those defects introduced by
the law now designed to be repealed. I do not
pretend to say that the present system is perfect;
1 contend only that it is better than the old. If,
sir. instead of destroying, gentlemen will under-
take to improve the present plan, I will not only
applaud their motives, but will assist in their labor.
We ask only that our system may be tried. Let
the sentence of experience be pronounced upon it.
Let us hear the national voice after it has been
felt. They will then be better able to judge its
merits. In practice it has not yet been complain-
ed of; and as it is designed for the benefit of the
people, how can their friends justify the act of
taking it from them before they have manifested
their disposition to part with it ?
How, sir, am I to account for the extreme anxi-
ety to get rid of this establishment ? Does it pro-
ceed from that spirit which, since power has been
^ven to it, has so unrelentingly persecuted men
m office who belonged to a certain sect? I hope
there will be a little patience ; these judges are
old and infirm men ; they will die ; they must die :
wait but a short time, their places will be vacant ;
they will be filled with the disciples of the new
school, and gentlemen will not have to answer for
the political murder which is now meditated.
I shall take the liberty now. sir, of paying some
attention* to the objections wnich have been ex-
pressed against the late establishment. An early
exception, which, in the course of the debate, has
been abandoned by most gentlemen, and little
relied on by any one, is the additional expense.
The gentleman from Virginia stated the expense
of the present establishment at one hundred and
thirty-seven thousand dollars. On this head the
material question is» not what is the expense of
the whole establishment, but what will be saved
by the repealing law on the table. I do not esti-
mate the saving at more than twenty-eight thou-
sand five hundred dollars. You save nothing but
the salaries of sixteen judges, of two thousancf dol-
lars each. From this amount is to be deducted
the salary of a Judge of the Supreme Court
which is three thousand five hundi'ed dollars.
Abolishing the present system will not vary the
incidental expenses of the circuit court. You re-
vive a circuit court whose incidental expenses
will be equal to those of the court you destroy.
The increased salaries of the district judges of Ken-
tucky and Tennessee must remain. It is not pro-
posed to abolish their offices, and the admissions
upon the other side allow that the salaries cannot
be reduced.
If there were no other objection, the present bill
could not pass without amendment, because it re-
duces the salaries of those judges, which is a plain,
undeniable infraction of the Constitution. But,
sir, it is not a fair way of treating the subject to
speak of the aggregate expense. The great in-
quiry is, whether the judges are necessary, nad
whether the salaries allowed to them are reason-
able ? Admitting the utility of the judges, I think
no gentlemen will contend that the compensation
is extravagant.
We are told of the expense attending the Fed-
eral Judiciary. Can gentlemen tell me of a Gov-
ernment under which justice is more cheaply ad-
ministered ? Add together the salaries of all your
judges, and the amount but little exceeds the
emoluments of the Chancellor of England. As-
certain the expenses of State justice, and the
627
HISTORY OF CONGRESS.
628
H. OF R.
Judiciary System,
Febbuart, 1802.
proportion of each State of the expense of federal
justice, and you will find that the former is five
times greater than the latter. Do gentlemen ex-
pect that a system expanded over the whole Union
IS to cost no more than the establishment of a sin-
fle State? Let it be remembered, sir, that the
udiciary is an integral and co-ordinate part with
the highest branches of the Government. No
Government can Ions exist without an efficient
Judiciary. It is the Judiciary which applies the
law and enables the Executive to carry it into
e£fect. Leave your laws to the judiciaries of the
States to execute, and my word for it in ten years
Jou have neither law nor Constitution. Is your
udiciary so costly that yon will not support it?
Why then lay out so much money upon the other
branches of your Government? I beg that it will be
recollected that if your Judiciary costs you thou-
sands of dollars, your Legislature costs you hun-
dreds of thousands, and your Executive millions.
An objection has been derived from the paucity
of causes in the federal courts, and the objection
has been magnified by the allegation,' that the
number had been annually decreasing. The facts
admitted, I draw a very different inference from
my opponents. In my opinion they furnish the
strongest proof of the defects of the former estab-
lishment, and of the necessity of a reform. I have
no doubt, nay, I know it to be the fact, that many
suitors were diverted from those tribunab by the
fluctuations to which they were subject. Allow
me, however, to take some notice of the facts.
They are founded upon the Presidential document
No. 8. Taking the facts as there stated, they al-
low upwards of fifty suits annually for each court.
When it is considered that those causes must each
have exceeded the value of five hundred dollars,
and that they were generally litigated cases, I do
not conceive that there is much ground to affirm
that the courts were without busmess. But, sir.
I must be excused for saying, I pay little respect
to this document. It has been shown by others
in several points to be erroneous, and from my
own knowledge, I know it to be incorrect. What
right had the President to call upon the clerks to
furnish him with the list of the suits which had
been brought, or were depending in their respect-
ive courts? Had this been directed by Congress,
or was there any money appropriated to pay the
expense? Is there any law which made it the
duty of the clerks to obey the order of the Execu-
tive? Are the clerks responsible for refusing the
lists, or for making false or defective returns ? Do
we know anything about the authenticity of the
certificates made by the clerks? And are we not
now aiming a mortal blow at one branch of the
Gk>vernment, upon the credit, and at the instiga-
tion of another and a rival department? Yes, sir,
I say, at the instigation of the President, for I con-
sider this business wholly as a Presidential meas-
ure. This document and his Message, show that
it originated with him ; I consider it as now pros-
ecuted by him, and I believe that he has the pow-
er to arrest its progress, or to accomplish its com-
pletion. I repeat that it is his measure. I hold
bim responsible for it; and I trust in God that the
time may come, when he will be called upon to
answer for it as his act. And I trust the time will
arrive, when he will hear us speaking upon the
subject more effectually.
It has been stated as the reproach, sir, of the bill
of the last session, that it was made by a party a:
the moment when they were sensible that their
fower was expiring and passing into other hands,
t is enooorh for me, that the full and legitimate
power existed. The remnant was plenary and
efficient. And it was our duty to employ it ac-
cording to our judgment and conscience for the
good of the country. We thought the bill a sal-
utary measure, and there was no obligration upoa
us to leave it as a work for our successors. Nay,
sir, I have no hesitation in avowing, that I had oo
confidence in the persons who were to foUow us.
And I was the more anxious while we had the
means to accomplish a work which I believed they
would not do, and which I sincerely thought
would contribute to the safety of the nation, bf
giving strength and support to the Constituiioii
through the storm to which it was likely to be ex-
posed. The fears, which I then felt, have not beeo
dispelled, but multiplied by what I hare since seen.
I know nothing which is to be allowed to stand.
I observe the institutions of the Government fall-
ing around me, and where the work of destruction
is to end God alone knows. We discharged our
consciences in establishinga judicial system, which
now exists, and it will be for those who now hold
the power of the Government to answer for the
abolition of it, which they at present meditate. We
are told, that our law was' against the sense of the
nation. Let me tell those gentlemen, they are
deceived, when they call themselves the nation.
They are only a dominant party, and though the
sun of Federalism should never rise again, thef
will shortly find men better or worse than them-
selves thrusting them out of their places. I know
it is the cant of those in power, however they have
acquired it, to call themselves the nation. We
have recently witnessed an example of it abroad.
How rapidly did the nation change in France ? At
one time Brissot called himself the nation ; thea
Robespierre, afterwards Tallien and Barras. and
finally Bonaparte. But their dreams were sooa
dissipated, and they awoke in succession upon the
scaffold, or in banishment. Let not those gentle-
men flatter themselves, that Heaven has reserved
to them a peculiar destiny. What has happened
to others in this country, they must be liable to.
Let them not exult too highlv in the enjoyment
of a little brief and fleeting authority. It vr^s oun
yesterday, it is theirs to day, but to-morrow it may
belong to others.
[Mr. Bayaro here stated, that he had gone
through the remarks he had to make connected
with tiie first point of the debate; that he observed,
that the common hour of adjournment had gone
by, and that he should sit down in order to allow
the Committee to rise, if they thought proper; and
that he should beg leave to be heard the folio wing
day upon the second point. After some conver-
sation, the Committee rose, reported — and the
House adjourned.]
629
HISTORY OF CONGRESS.
630
FCBRUARY, 1802.
Judiciary System.
H.opR.
Saturday, February 20.
A memorial of sundry inhabitants of the city
and county of Philadelphia, in the State of Penn-
sylvania, was presented to the House and read,
prayino; a repeal of the act of Congress, passed on
the thirteenth of February, one thousand eight
hundred and one, entitled ^^ An act to provide for
the more convenient organization of the Courts of
the United States." — Referred.
Mr. Stanley, one of the members from the State
of North Carolina, presented to the House certain
resolutions agreed to by the two branches of the
Legislature of the said State, on the fifteenth of
December last, proposing amendments to the Con-
stitution of the United States, respecting a choice
of a President and Vice President, and the elec-
tion of Representatives to Congress from the sev-
eral States ; which were received, read, and ordered
to be referred to a Committee of the whole House
on the state of the Union.
JUDICIARY SYSTEM.
The House again resolved itself into a Com-
mittee of the Whole on the bill sent from the Sen-
ate, entitled " An act to repeal certain acts respect-
ing the organization of the Courts of the United
States, and for other purposes."
Mr. Bayard. — I owe to the Committee the ex-
pression of my thanks for the patience with which
they attended to the laborious discussion of yes-
teraay.
It will be my endeavor, in the remarks which
I have to offer upon the remaining part of the de
bate, to consume no time which the importance
of the subject does not justifv. I have never de-
parted from the question before the Committee,
but with great reluctance. Before I heard the
gentleman from Virginia, I had not an observation
to make unconnected with the bill on the table.
It was he who forced me to wander on foreign
ground ; and be assured, sir, I shall be guilty of no
new digressions where I am not covered by the
same justification.
I did think that this was an occasion when the
House ought to have been liberated from the do-
minion of party spirit, and allowed to decide upon
the unbiassed aictates of their understanding. The
vain hope which I indulged that this course would
be pursued was soon dissipated by the inflamma-
tory appeal made, b^ the gentleman from Virginia,
to the passions of his party. This appeal (which
treated with no respect the feelings of one side of
the House) will excuse recriminations which have
been made, or which shall be retorted. We were
disposed to conciliate, but gentlemen are deceived
if tney think that we will suomit to be trampled on.
I shall now. sir, proceed to the consideration of
the second point which the subject presents. How-
ever this point may be disguised by subtleties, I
conceive the true question to be. Has the Legisla-
ture a right, by a law, to remove a judge? Gen-
tlemen may state their question to be, Has the
Legislature a right by law to vacate the office of
a judge? But, as in fact they remove the judges,
they are bound to answer our question.
The question which I state they will not meet.
%Nay, I have considered it as conceded, upon all
'hands, that the Legislature have not the power of
removing a judge from his office; but it is con-
tended only that the office may be taken from the
judge. Sir. it is a principle in law, whi<:h ought,
and I apprehend does, hold more strongly in poli-
tics, that what is prohibited from bein^ done di-
rectly, is restrained from being done indirectly.
Is there any difference, but in words, between
taking the office from a judge and removing a
judge from the office? Do you not indirectly ac-
complish the end which you admit is prohibited?
I will not say that it is the sole intention of the
supporters of the bill before us to remove the cir-
cuit judges from their offices, but I will say that
they establish a precedent which will enable worse
men than themselves to make use of the Legisla«
tive power, for that purpose, upon any occasion.
If it be Constitutional to vacate the office, and
in that way to dismiss the judge, can there be a
Question as to the power to re-create the office and
nil it with another man ? Repeal to-day the bill
of the last session, and the circuit judges are no
longer in office. To-morrow, rescind this repeal-
ing act, (and no one will doubt the right to do it,)
and no effect is produced but the removal of the
judges. To suppose that such a case may occur,
IS no vagary of imagination. The thin^ has been
done, shamelessly done, in a neighborinfir State.
The judges there held their offices upon the same
tenure with the judges of the United States. Three
of them were obnoxious to the men in power. The
Judicial law of the State was repealed, and imme-
diately re-enacted, without a veil being thrown
over the transaction. The obnoxious men were
removed, their places supplied with new charac-
ters, and theother judges were re-appointed. What-
ever sophistry may l^ able to show in theory, in
practice there never will be found a difference in
the exercise of the powers of removing a judge
and of vacating his office.
The question which we are now considering
depends upon the provisions contained in the Con-
stitution. It is an error of the Committee, upon
plain subjects, to search for reasons very profound.
Upon the present subject, the strong provisions of
the Constitution are so obvious that no eye can
overlook them. They have been repeatedly cited,
and, as long as the question stated is under discus-
sion, they must be reiterated. There are two
prominent provisions to which I now particularly
allude: first, the judges shall hold their offices
during good behaviour; secondly, their compen-
sation shall not be diminished during their contin-
uance. These are provisions so clearly under-
stood, upon the first impression, that their mean-
ing is rather obscured than illustrated by argument.
What is meant, and what has been universally
understood, by the tenure of "good behaviour?"
A tenure for life, it the judge commit no misde-
meanor. It isso understood and expressed in Eng-
land, and so it has always been received and ad-
mitted in this country. The express provision,
then, of the Constitution, defines the tenure of a
judge's office — a tenure during life. How is that
tenure expressly qualified? j3y the good beha-
631
HISTORY OF CONGRESS.
632
H.opR.
Judiciary System.
February, 180^.
viour of the judge. Is the tenure qualified by any
other express condition or limitation ? No other.
As the tenure is express — as but one express lim-
itation is imposed upon it — can it be subject to any
other limitation not derived from necessary impli-
cation? If any material provision in the Consti-
tution can in no other manner be satisfied than by
subjecting the tenure of this office to some new
condition, I will then admit that the tenure is sub-
ject to the condition.
Gentlemen have ventured tp point out a provi-
sion which they conceived furnisned this necessary
implication. They refer to the power given to
Congress, from time to time, to establish courts
inferior to the Supreme Court. If this power can-
not be exercised without vacating the offices of
existing judges, I will concede that those offices
may be vacated. But, on this head, there can be
no controversy. The power has been, and at all
limes may be, exercised, without vacating the
office of any judge. It was so exercised at the last
session of Congress, and I surely do not now dis>
pute the right of gentlemen to establish as many
new courts, as they may deem expedient. The
power to establish new courts does not, therefore,
imply a power to abolish the offices of existing
judges, because the existence of those offices does
not prevent an execution of the power.
The clause in the Constitution to which I have
just alluded has furnished to gentlemen their
famous position, that, though you cannot remove
a judge from his office, you may take the office
from the judge. Thougn I should be in order, I
will not call this a quibble; but I shall attempt,
in the course of the argument, yet more clearly to
prove that it is one. I do not contend that you
cannot abolish an empty office ; but the point on
which I rely, is, that you can do no act which
impairs the independence of a judge. When gen-
tlemen assert that the office may be vacated, not-
withstanding the incumbency of the judge, do they
consider that they beg the very point which is in
controversy 1 The office cannot be vacated with-
out violating the express provision of the Consti-
tution in relation to the tenure.
The judge is to hold the office during good be-
haviour. Does he hold it when it is taken from
him ? Has the Constitution said that he shall
hold the office during good behaviour, unless Con-
f;ress shall deem it expedient to abolish the office?
f this limitation has been omitted, what authori-
ty have we to make it part of the Constitution ?
The second plain, unequivocal provision on
this subject is, tnat the compensation of the judge
shall not be diminished during the time he con-
tinues in office. This provision is directly level-
ed at the power of the Legislature. They alone
could reduce the salary. Could this provision
have any other design than to place the judge out
of the power of Congress ? And yet how imper-
fect and how absurd the plan ! You cannot re-
duce a part of the compensation, but you may
extinguish the whole. What is the sum of this
notable reasoning ? You cannot remove a judge
from office, but you mav take the office from the
judge. You cannot taxe the Compensation from
the judge, but you may separate the judge from
the compensation.
If your Constitution cannot resist reasoning like
this, then indeed is it waste paper.
I will here turn aside, in order to consider a va-
riety of arguments drawn from difierent sources,
on which gentlemen on the other side have placed
a reliance. I know of no order in which the?
can be classed, and I shall, therefore, take them
up as I meet with them .on my notes. It was
urged by the honorable member irom Virginia, to
whom t have so frec^uently referred, that wktt
was created hy law might by law be annihilated
In the application of his principle, he disclosed
views which I believe have not been contemplated
by gentlemen of his party. He was industrious to
show that not only the inferior courts, but the
Supreme Court derives its existence from Jaw.
The President and Legislature exist nnder the
Constitution. They came into being without the
aid of a law. But, though the Constitution said
there should be a Supreme Court, no judges could
exist till the court was organized by a la^v. This
argument, I presume, was pushed to this extent
in order to give notice to the judges of the Su-
preme Court of their fate, and to bid them to pre-
pare for their end.
I shall not attempt to discriminate between the
tenure of the offices of the judges of the supreme
and inferior courts. Congress has power to or-
ganize both descriptions of courts, and to limit the
number of judges, but they have no power to limit
or define the tenure of office. Congress creates
the office, the President appoints the officer ; bm
it is neither under Congress nor the President, bat
under the Constitution, that the judge claims to
hold the office during good behaviour. The prin-
ciple asserted does not in this case apply ; the
tenure of office is not created by law, and if the
truth of the principle were admitted, it would not
follow that the tenure of the office might be vacated
by law. But the principle is not sound. I will
snow a variety of cases which will prove its fal-
lacy. Among the obnoxious measures of the late
Administration, was the loan of five millions,
which was funded at eight per cent. The loan
was created by a law and funded by law. Is the
gentleman prepared to say that this debt, whicli
was funded by a law of the former Legislature,
may be extinguished by a law of the present?
Can you, by calling the interest of this debt ex-
orbitant and usurious, justify the reduction of it?
Gentlemen admit that the salary of a judge,
though established by a law^ cannot be diminish-
ed by a law. The same thing must be allowed
with respect to the salary of the President Sir.
the true principle is, that one Legislature may re-
peal the act or a former, in cases not prohibited
Dy the Constitution. The correct question, there-
fore, is, whether the Legislature are not forbidden
by the Constitution to abridge the tenure of a ju-
dicial office ?
In order to avoid cases of a nature similar to
those which I have put, the gentleman from Ken-
tucky, (Mr. Davis,) and, after him, the gentle^
man from Virginia, endeavored to draw a dis-
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HISTORY OF CONGRESS,
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February, 1802.
Judiciary System,
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tinctioD between -laws executed and laws execu-
tory.
The distinction was illustrated by reference to
the case of a State ad nutted by law into the
Union. Here, it is said, the law is executed, and
functjM officio^ and if you repeal it. still the State
remains a member of the Union. But it was
asked by the gentleman from Kentucky, suppos-
ing a law made to admit a State into tbe Union
at a future time, before the time of admission ar-
rived, could not the law be repealed ? I will an-
swer the question to the satisfaction of the gen-
tleman, by stating a case which exists: By an or-
dinance of Congress, in the year 1787, Congress
ordained, that when the population within the
limits of a State within the Northwestern Terri-
tory should amount to sixty thousand souls, the
district should be admitted as a member or the
Union. Will the gentleman venture to doubt as
to this case? Would he dare to tell the people
of this country that Congress had the power to
disfranchise them 7
The law, in the case I refer to, is executory,
though the event upon which it is to take effect is
limited by population, and not b^ time.
But, sir. if there were anything in the princi-
Ele, it has no influence upon the case to which it
as been applied. A law has created the office of
a j udge. the judge has been appointed, and the
office filled. The law is, therefore, executed, and
upon the very distinction of the gentleman, can-
not be repealed. The law fixing the compensa-
tion is executory, and so is that which establishes
the salary of the President; but, though executo-
rv, they cannot be repealed. The distinction,
tterefore^ is idle, and leaves the question upon the
ground of the repeal being permitted or prohib-
ited by the Constitution. I shall now advert, sir,
to an argument urged with great force, and not a
little triumph, by the honorable member from
Virginia. This argument is derived from the word
" hold," in the expression^ the judge shall hold his
office during good behaviour. It is considered as
correlative to tenure. The gentleman remarks,
that the Constitution provides that the President
shall nominate the judge to his office, and when
approved by the Senate, shall commission him.
It is hence inferred that, as the President nomi-
nates and commissions tne judge, the judge holds
the office of the President ; and that wnen the
Constitution provides that the tenure of the office
shall be during good behaviour, the provision ap-
plies to the President, and restrains the power
which otherwise would result in consequence of
the offices beinff holden of him, to remove the
iudges at his will. This is an argument, sir, which
1 should have thought that honorable member
would have been the last person upon this floor
to have adopted. It not only imputes to the
President royal attributes, but prerogatives, de-
rived from the rude doctrines of tne feudal law.
Does the j^entleman mean to contend that the
President of these States, like the Monarch of
England, is the fountain of honor, of justice, and
of office? Does he mean to contend that the
courts are the President's courts, and the judges
the President's judges? Does he mean to say, sir,
that the Chief Magistrate is always supposed to
be present in these courts, and that the judges are
but the images of his justice ? To serve the pal-
try purposes of this argument, would the gentle-
man be willing to infuse in our Constitution the
vital spirit of the feudal doctrines? He does not
believe, he canuot believe, that when the word
" hold" was employed, any reference was had to
its feudal import. The language of the Constitu-
tion furnishes no support to this feudal argument.
These officers are not called the judges of the
President, but the judges of tht United States.
They are a branch of the Government equally
important, and desipfned to be co-ordinate witn
the President. If, sir, because the President nom-
inates to office and commissions, the office is held
of him, for a stranger reason where by patent he
f rants lands of the United States, the lands are
eld of him. And upon the grantee's dying with-
out heirs, the lands would escheat not to the Unit-
ed States, but to the President. In England, the
tenure of lands and offices is derived from the
same principle. All lands are held mediately or
immediately of the Crown, because they are sup-
posed to have been originally acquired from the
personal grant of the Monarch. It is the same of
office, as the King is supposed to be the source of
all offices. Having the power to grant, he has a
right to define the terms of the grant. These
terms constitute the tenure. When the terms
fail, the tenure ceases, and the object of the grant
reverts to the grantor. This gentleman has
charged others with monarchical tendencies, but
never have I before witnessed an attempt so bold
and strong to incorporate in our Constitution a
rank monarchical principle. I^ sir, the principle
of our Constitution on this subject be republican
and not monarchical, and the iudges hold their
offices of the United States, and not of the Presi-
dent, then the application of his argument has all
the force against the gentleman which he design-
ed it should have against his adversaries. For, if
the office be held of the United States, and the
tenure of good behaviour was designed to restrain
the power of those of whom the office was holden,
it will follow that it was the intention to restrain
the power of the United States.
We have been told by gentlemen that the
principles we advocated tended to establish a sin-
ecure system in the country. Sir, I am as little
disposed to be accessary to the establishment of
such a system as any gentleman on this floor.
But let me ask how this system is to be produced ?
We established judicial offices, to which nume-
rous and important duties were assigned. A com-
pensation has been allowed to the judges, which
no one will say is immoderate, or disproportioned
to the service to be rendered. These gentlemen
first abolish the duties of the offices, then call the
judges pensioners, and afterwards accuse us of
establishing sinecures. There are no pensioners
at present; if there should be any, they will be
the creatures of this law. I have ever considered
it as a sound and moral maxim that no one should
avail himself of his own wrong. It is a maxim
635
HISTORY OP CONGRESS.
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H. OF R.
Judiciary System,
February, 1S02.
which ought to be equally obligatory upon the
public as upon the private roan. In the present
case, the judge offers you his service. You can-
not say it is not worth the mouey you pay for it.
You refuse to accept the service ; and, after en-
gaging to pay him while he continued to perform
me service, you deny him his compensation, be-
cause he neglects to render services which you
have prevented him from performing. Was in-
justice ever more flagrant ? Surely, sir, the judges
are innocent. If we did wrong, why should they
be punished and disgraced ? They did not pass
the obnoxious law; they did not create the offices;
they had no participation in the guilty business;
but they were invited upon the faith of the Gov-
ernment to renounce their private professions, to
relinquish the emoluments of other employments,
and to enter into the service *of the United States,
who engaged to retain them during their lives, if
they were guilty of no misconduct. They have
behaved themselves well, unexceptionably well,
when they find the Government rescinding the con-
tract made with them, refusing the stipulated
price of their labor, dismissing them from service,
and in order to cover the scandalous breach of,
faith, stigmatizing them with names which may
render them odious to their countrymen. Is there
a gentleman on the floor ofthis House who would
not revolt at such conduct in pri vate life ? Is there
one who would feel himself justified, after em-
ploying a person for a certain time, and agreeing
to pay a certain compensation, to dismiss the party
from the service upon any caprice which altered
his views, deny him the stipulated compensation,
and to abuse him with opprobrious names for ex-
pecting the benefit of the engagement?
A bold attempt was made by one of the gentle-
men from Virginia /Mr. Giles) to force to his
aid the statute of William III. I call it a bold at-
tempt, because the gentleman was ubliged to rely
upon nis own assertion to support the ground of
his argument. He stated that the clause in the
Constitution was borrowed from a similar pro-
vision in the statute. I know nothing about the
fact, but I will allow the gentleman its full bene-
fit. In England, at an earlier period, the judges
held their commissions during the good pleasure
of the Monarch. The Parliament desired, and
the Ring consented that the royal prerogative
should be restrained. That the offices of judges
should not depend on the will of the Crown alone,
but upon the joint pleasure of the Crown and of
Parliament. The King consented to part with a
portion of his prerogative by relinquishing his
power to remove the judges without the advice
of his Parliament. By an express clause in the
statute, he retained the authority to remove them
with the advice of his Parliament. Suppose the
clause had been omitted which reserved the right
to remove upon the two Houses of Parliament,
and the statute had been worded in the unquali-
fied language of our Constitution, that the judges
should hold their offices during good behaviour,
would not the prerogative of removal have been
abolished altogether? I will not say that the
honorable member nas been peculiarly unfortu-
nate in the employment of this argument, be-
cause, sir, it appears to me that most to which b«
had recourse, when justly considered, have ope-
rated against the cause they were designed to
support.
.The gentleman tells us that the CoQstitutioDal
provision on this subject was taken from the'stit-
ute of William. Will he answer me this plain
question ? Why do we find omitted in the Con-
stitution that part of the statutory provision,
which allowed the judges to be removed upon the
address of the two branches of the Legislature?
Does he suppose that the clause was not observ-
ed? Does he imagine that the provision was
dropt through inadvertency ? Will he impute sc
gross a neglect to an instrument, every sentence
and word, and comma of which, he has told us
was so maturely considered, and so warily set-
tled ? No. sir, it is impossible ; and give me leave
to say, that if this part of the Constitution were
taken from the statute, (and the gentleman from
Virginia must have better information on the sub-
ject than I have,) that a stronger argument could
not be adduced to show that it was the intention
of those who framed the Coostitntion, by omit-
ting that clause in the statute which made the
judges tenants of their office at the will of Parlii-
raent, to improve in this country the English plan
of judicature, b^ rendering the judges independ-
ent of the Legislature. And I shall have occa-
sion, in the course of my observations, to shov
that the strongest reasons derived from the nat^irv
of our Government, and which do not apply to
the English form, require the improvement to be
made.
Upon this point, sir, we may borrow a few ad-
ditional rays of light from the constitutions of
Pennsylvania, of Delaware, and of some other
States. In those States, it has been thought thai
there might be misconduct on the part of a judge,
not amountinof to an impeachable offence, for
which he should be liable to be removed. Their
constitutions, therefore, have varied from that oi'
the United States, and rendered their judges li-
able to be removed upon the address of two-thirdt
of each branch of the Legislature. Does it not
strike every mind that it was the inteaiion of
those constitutions to have judges independent oi
a majority of each branch ofthe Legislature ? And
I apprehend, also, that it may be fairly inferred,
that it was understood in those States when their
constitutions were formed, that even two-thirds
of each branch of the Legislature would nut h^ve
the power to remove a judge, whose tenure cf
office was during good behaviour, unless the pow-
er wns expressly given to them by the Constito-
tion. I cannot well conceive of anything mare
absurd in an instrument designed to last for cen-
turies, and to bind the furious passions of party.
than to fortify one pass to judicial indepe&oeDce.
and to leave another totally unguarded against the
violence of Legislative power.
It has been urged by the gentleman from Vir-
ginia that our admission, that Congress has power
to modify the office of a judge, leads to the con-
clusion, that they have the power to abolish the
637
HISTORY OF CONGRESS,
638
February. 1802.
Judiciary System.
H. opR.
office ; because, by paring away their powers, they
may at length reduce them to a shadow, and leave
them as humble and as contemptible as a court
of jfie-wmdre. The office of a judge consists of
jadicial powers, which he is appointed to execute.
Every law which is passed increases or dimin-
ishes those powers, and so far modifies the office ;
nay, it is competent for the Legislature to pre-
scribe additional duties or to dispense with unne-
cessary services, which are connected with the
office of judge. But this power has its bounds.
You may modify the office to any extent which
does not affect the independence of the judge.
The judge is to hold the office during good be-
haviour ; now modify as you please, so that you
do not infrinp^e this Constitutional provision.
Do you ask me to draw aline and say, thus far
you shall go and no further ? I admit no line can
be drawn. It is an affair of sound and bonajide
discretion, because a discretion on the subject is
given to tne Legislature; to argue upon the abuse
of that discretion is adopting a principle subver-
sive of all legitimate power.
The Constitution is predicated upon the exist-
ence of a certain decree of integrity in man. It
has trusted powers liable to enormous abuse, if all
political honesty be discarded. The Legislature
is not limited in the amount of the taxes which
they have a right to impose, nor as to the objects
to which they are to be applied. Does this power
give us the property of the country, because, by
Laxes, we might draw it into the public coffers,
ind then cut up the Treasury and divide the
spoils ? Is there any power in respect to which
1 precise line can be drawn between the discreet
exercise and the abuse of it ?
I can only say, therefore, on this subject, that
3Yery man is acquitted to his own conscience who
bonajide does not intend, and who sincerely does
lot believe that, by the law which he is about to
[)ass, he interferes with the judges holding their
offices during good behaviour.
I am now brought, Mr. Chairman, to take no-
:ice of some remarks which fell from the gentle-
nan from Virginia, which do not belong to the
mbject before us, but are of sufficient importance
o deserve particular attention. He called our at-
ention, in a very impressive manner, to the state
)f parties in this House at the time when the act
)f the last session passed. He describes us in a
(tate of blind paroxysm, incapable of discerning
:he nature or tendency of the measures we were
pursuing; that a majority of the House were
struggling to counteract the expression of the pub-
ic will, in relation to the person who was to be
he Chief Magistrate of the country.
I did suppose, sir, that this subject was at an
;nd ; and I did imagine that as gentlemen had
iccomplished their object, they would have been
latisfied. But as the subject is again renewed, we
nust be allowed to justify our conduct. I know
lot what the gentleman calls an expression of the
lublic will. There were two candidates for the
)ffice of President, who were presented to the
Elouse of Representatives with equal suffrages.
The Constitution gave us the right, and made it
our duty to elect that one of the two whom we
thought preferable. A public man is to notice
the public will, as Constitutionally expressed.
The gentleman from Virginia, and many others,
may have had their preference, but that prefer-
ence of the public will did not appear by its Con-
stitutional expression. Sir. I am not certain that
either of those candidates had a majority of the
country in his favor. Excluding the State of
South Carolina, the country was equally divided.
We know that parties in tnat State were nearly
equally balanceo, and the claims of both the can-
didates were supported by no other scrutiny into
the public will, than our official return of votes.
Those votes are very imperfect evidence of the
true will of a majority or the nation. They re-
sulted from political intrigue and artificial ar-
ranirements.
When we look at the votes, we must suppose
that every man in Virginia voted the same way.
These votes are received as a correct expression of
the public will. And yet we know that, if the
votes of that State were apportioned according to
the several voices of the people, that, at least,
seven out of twenty-one would have been opposea
to the successful candidates. It was the suppres-
sion of the will of one-third of Virginia which
enables gentlemen now to say, that the present
Chief Magistrate is the man of the people. I con-
sider that as the public will, which is expressed
by Constitutional organs. To that will I bow and
submit. The public will, thus manifested, gave
to the House or Representatives the choice ol the
two men for Presidei^t. Neither of them was ttte
man whom I wished to make President ; but my
election was confined, by the Constitution, to one
of the two, and I gave my vote to the one whom
I thought was the greater and better man. That
vote I repeated, and in that vote I should have
persisted, had I not been driven from it by impe-
rious necessity. The prospect ceased of the vote
being effectual, and the alternative only remained
of taking one man for President, or having no
President at all. I chose, as I then thought, the
lesser evil. ^
From the scene in this nouse, the gentleman
carried us to one in the Senate. I should blush,
sir, for the honor of the country, could I suppose
that the law designed to be repealed owed its sup-
port in that body to the motives which have been
indicated. The charge designed to be conveyed,
not only deeply implicates the integrity of indi-
viduals of the Senate, but of the person who was
then the Chief Magistrate. The gentleman, going
beyond all precedent, has mentioned the names
of members of that body, to whom commissions
issued for offices not created by the bill before
them, but which that bill, by the promotions it af-
forded, was likely to render vacant. He has con-
sidered the scandal of the transaction as aggra-
vated by the issuing of commissions for offices not
actually vacant^ upon the bare presumption that
they would become vacant, by the incumbents
accepting commissions for higher offices which
were issued in their favor. The gentleman has
particularly dwelt upon the indecent appearance
639
HISTORY OF CONGRESS.
640
H. OP R.
Judiciary System.
FEBttUARY, 1802.
of the business, from two commissioDs being held
by different persons at the same time for the same
office.
I beg that it will be understood, that I mean to
give no opinion as to the regularity of granting a
commission for a judicial office, upon the proba-
bility of a vacancy before it is actually vacant :
but I shall be allowed to say, that so much doubt
attends the point, that an innocent mistake might
be made on the subject. I believe, sir, it has been
the practice to consider the acceptance of an office
as relating to the date of the commission. The
officer is allowed his salary from that date, upon
the principle that the commission is a grant of
the office, and the title commerces with the date
of the grant. This principle is certainly liable
to abuse, but where there was a suspicion of abuse,
I presume the Government would depart from it.
Admitting the office to pass by the commission,
and the acceptance to relate to its date, it then
does not appear very incorrect in the case of a
commission for the office of a circuit judge, grant-
ed to a district judge, as the acceptance of the
commission for the former office relates to the
date of the commission, to consider the latter office
as vacant from the same time. The offices are
incompatible. You cannot suppose the same per-
son in both offices at the same time. From the
moment, therefore, that you consider the office of
circuit judge filled by a person who holds the
commission of district judge, you must consider
the office of district judge as vacated. The grant
is contingent. If the contingency happen, the
office vests from the date of the commission ; if
the contingency does not happen, the grant is
void. If this reasoning be sound, it was not ir-
regular in the late Administration, after granting a
commission to a district judge, for the place of a
circuit judge, to make a grant of the office of the
district judge, upon the contingency of his accept-
ing the office of circuit judge.
I now, sir, return to that point of the charge
which was personal in its nature, and of infinitely
the most serious import. It is a charge, as to which
we can only ask, is it true? If it be true, it can-
not be excused ; it caifnot be palliated ; it is vile,
profligate corruption, which every honest mind
will execrate. But, sir, we are not to condemn
till we have evidence of the fact. If the offence
be serious, the proof ousht to be plenty. I will
consider the evidence of the fact upon which the
honorable member has relied, and I will show him,
by the application of it to a stronger case, that it
is of a nature to prove nothing.
Let me first state the principal case. Two gen-
tlemen of the Senate, Mr. Read, of South Carolina,
and Mr. Green, of Rhode Island, who voted in
ifivor of the law of last session, each received an
appointment to the place of district judge, which
was designed to be vacated by the promotion of
the district judge to the office or circuit judge. The
gentleman conveyed to us a distinct impression of
his opinion, that there was an understanding be-
tween these gentlemen and the President, and that
the offices were the promised price of their votes.
I presume, sir, the gentleman will have more
charity in the case which I am about to mentioiL
and he will for once admit that public men ought
notto be condemned upon loose conclusions, drawn
from equivocal presumptions.
The case, sir, to which I refer, carries me once
more to the scene of the Presidential election. I
should not have introduced it into this debate, had
it not been called up by the honorable member
from Virginia. In that scene I had ray part ; it
was a part not barren of incident, and which has
left an impression which cannot easily depart from
my recollection. I know who were rendered im-
portant characters, either from the possession of
personal means, or from the accident of political
situation. And now, sir, let me ask the honorable
member what his reflections and belief will be,
when he observes that every man, on whose vote
the event of the election hung, has since been dis-
tinguished by Presidential favor? I fear, sir. I shall
violate the decorum ofParliamentary proceeding, in
the mentioning of names ; but I hope the example
which has been set me will be admitted as an ex-
cuse. Mr. Charles Pinckney, of South Carolina.
was not a member of the House, but he was ooe
of the most active, efficient, and successful pro-
moters of the election of the present Chief Magis-
trate. It was well ascertained that the votes of
South Carolina were to turn the equal balance cf
the scales. The zeal and industry of Mr. Pinck-
ney had no bounds. The doubtful politico of
South Carolina were decided, and her votes cast
into the scale of Mr. Jefferson. Mr. Pinckney
has since been appointed Minister Plenipotentiary
to the Court of Madrid ; an appointment as high
and honorable as any within tne gift of the Ex-
ecutive. I will not deny that this preferment is
the reward of talents and services, although, sir, I
have never yet heard of the talents or services of
Mr. Charles Pinckney. In the House of Repre-
sentatives I know what was the value of the vote
of Mr. Claiborne, of Tennessee. The vote of a
State was in his hands. Mr. Claiborne has since
been raised to the high dignity of Cxovernor of the
Mississi ppi Territory. ' I know how great, and how
greatly felt, was the importance of the vote of Mr.
Lion, of New Jersey. The delegation of the State
consists of five members. Two of the delegation
were decidedly for Mr. Jefferson ; two were de-
cidely for Mr. Burr. Mr. Linn was considered
as inclininfi^ to one side, but still doubtful. Both
parties looked up to him for the vote of New Jer-
sey. He gave it to Mr. Jefferson, and Mr. Linn
has since had the profitable office of supervisor of
his district conferred upon him. Mr. Lyon, of Ver-
mont, waSj in this instance, an important man.
He neutralized the vote of Vermont. His absence
alone would have given the vote of a State to Mr.
Burr. It was too much to give an office to Mr.
Lyon ; his character was low. But Mr. Lyon^
son has been handsomely provided for in one of
the Executive offices. I shall add to the catalogue
but the name of one more gentleman, Mr. Edward
Livingston, of New York. I knew well, full well
I knew the conse(}uence of this gentlemen. His
means were not limited to his own vote ; nay. I
always considered more than the vote of New
641
HISTORY OF CONGRESS.
642
February. 1802.
Judiciary System.
H. OP R.
York within his power. Mr. Livingston has been
made the attorney for the district of New York;
the road of preferment has been opened to him, and
his brother has been raised to the distinguished
place of Minister Plenipotentiary to the French
Republic.
This catalogue might be swelled to a much
greater magnitude; but I fear, Mr. Chairman,
were I to proceed farther, it mi^ht be supposed
that I myself harbored the uncharitable suspic-
ions of the integrity of the Chief Magistrate, and
of the purity of the gentlemen whom he thought
proper to promote, which it is my design alone to
banish from the mind of the honorable member
from Virginia. It would be doing me great injus-
tice to suppose that I have the smallest desire, or
have had the remotest intention to tarnish the
fame of the present Chief Magistrate, or of any
of the honorable gentlemen who have been the
objects of his iavor, by the statement which I
have made ; my motive is of an opposite nature.
The late President appointed gentlemen to office
to whom he owed no personal obligations, but
who only supported what has been considered as
a favorite measure. This has been assumed as
a sufficient ground, not only of suspicion, but of
condemnation. The present Executive, leaving
scarcely an exception^ has appointed to office, or
has, by accident, indirectly gratified every man
who had any distinguished means in the compe-
tit ion for the Presidential office, of deciding^ the
election in his favor. Yet, sir, all this furnishes
too feeble a presumption to warrant me to express
a suspicion of the integrity of a great officer, or
of the probity of honorable men, in the discharge
of the high functions which they have derived
from the confidence of their country. I am sure,
sir, in this case, the honorable member from Vir-
ginia is as exempt from any suspicion as myself.
And I shall have accomplished my whole object,
if I induce that honorable member, and other
members of the Committee, who entertain his
suspicions as to the conduct of the late Executive,
to review the ground of those suspicions, and to
consider that in a case furnishing much stronger
f round for the presumption of criminality, they
ave an unshaken belief, an unbroken confidence
in the purity and fairness of the Executive con-
duct.
I return again to the subject before the Com-
mittee, from the unpleasant digression to which I
was forced to submit, in order to repel insinua-
tions which were calculated to have the worst
effect, as well abroad as within the walls of this
House. I shall now cursorily advert to some ar-
guments of minor importance, which are sup-
posed to have some weight, by gentlemen on the
other side. It is said, that if the courts are sanc-
tuaries, and the judges cannot be removed by
law, it would be in the power of a party to create
a host of them to live as pensioners on the coun-
try. This argument is predicated upon an ex-
treme abuse of power, which can never fairly be
urged to restrain the legitimate exercise of it: as
well might it be urged that a subsequent Congress
had a right to reduce the salary of a judge, or of
7th Con —21
the President, fixed by a former Congress ; be-
cause, if the right did not exist, one Congress
might confer a salary of five hundred thousand
or one million dollars, to the impoverishment of
the country. It will be time enough to decide
upon those extreme cases when they occur. We
are told that the doctrine we contend for, enables
one Legislature to derogate from the power of
another. That it attributes to a former, a power
which it denies to a subsequent Legislature.
This is not correct. We admit that this Con-
gress possesses all the power possessed by the last
Congress. That Congress had a power to estab-
lish courts ; so has the present. That Congress
had not, nor did it claim the power to abolish the
office of a judge while it was filled. Though
they thought five judges under the new system
sufficient to constitute the Supreme Court, they
did not attempt to touch the office of eitner of
the six judges. Though they considered it more
convenient to have circuit judges in Kentucky
and Tennessee than district judges, they did not
lay their hands upon the offices of the six judges.
We therefore deny no power to this Congress
which was not denied to the last. An honorable
member from Virginia seriously expressed his
alarm, lest the principles we contended for should
introduce into the country a privileged order of
men. The idea of the gentleman supposes that
every office not at will establishes a privileged
order. The judges have their offices for one
term ; the President, the Senators, and the mem-
bers of this House, for different terms. While
these terms endure, there is a privilege to hold
the places, and no power exists to remove. If
this ue what the gentleman means by a privileged
order, and he agrees that the Presiaent, the Sen-
ators, and the members of this House, belong to
privileged orders, I shall give myself no trouble
to deny that the judges fall under the same de-
scription ; and I believe that the gentleman will
find it difficult to show, that in any other manner
they are privileged. I did not suppose that this
argument was so much addressed to the under-
standings of gentlemen upon this floor, as to the
prejudices and passions oi- people out ox doors.
It was ursed with some impression by the hon-
orable member from Virginia, to whom I last re-
ferred, that the position that the office of a judge
might be taken from him by law, was not a new
doctrine. That it was established by the very
act now designed to be repealed, which was de-
scribed in glowing language to have inflicted a
gaping wound on the Constitution, and to have
stained with its blood the pages of our statute
book. It shall be my task, sir, to close this gaping
wound, and to wash from the pages of our statute
book the blood with which tney are stained. It
will be an easy task to show to you the Constitu-
tion without a wound, and the statute book with-
out a stain.
It is, sir, the twenty-seventh section of the bill
of the last session which the honorable member
considers as having inflicted the ghastly woimd
on the Constitution^ of which he has so feelingly
spoken. That section abolishes the ancient cir-
643
HISTORY OF CONGRESS.
644
H. OF R.
Judiciary System,
Febrdart, 1802.
cuit courts. But, sir, have we contended, or has
the gentleman shown, that the Constitution pro-
hibits the abolition of a court when you do not
materially afiect, or in any degree impair the
independence of a judge ? A court is nothing
than a place where a judge is directed more to
discbarge certain duties. There is no doubt
you may erect a new court and direct it to be
nolden by the judges of the Supreme or of the
District Courts. And if it should afterwards
be your pleasure to abolish that court, it cannot
be said tnat you destroy the offices of the judges
by whom it was appointed that the courts should
be holden.
Thus it was directed by the original judicial
law, that a circuit court should be holden at York-
town in the district of Pennsylvania. This court
was afterwards abolished, but it was never im-
agined that the office of any jud^e was affected.
Let me suppose that a State is divided into two
districts, and district courts established in each,
but that one jud^^e is appointed by law to discharge
the judicial duties in both courts. The arrange-
ment is afterwards found inconvenient, and one
of the courts is abolished. In this case will it be
said^ that the office of the judge is destroyed, or
his independence affected ? The error into which
gentlemen have fallen on this subject has arisen
from their taking for granted what they have not
attempted to prove, and what cannot be supported,
that the office of a judge, and any court in which
he officiates, are the same thing. It is most clear,
that a judge may be authorized and directed to
perform duties in several courts, and that the dis-
charging him from the performance of duty in
one of those courts cannot be deemed an infringe-
ment of his office. The case of the late circuit
courts as plainly illustrates the argument, and as
conclusively demonstrates its correctness, as any
case which can be put. There were not nomi-
nally any judges of the circuit court. The court
^as directed to be holden by the judges of the
supreme and of the district courts. The judges
«f these two courts were associated and directed
to perform certain duties ; when associated, and
•in the performance of those duties, they were de-
nominated the circuit court. This court is abol-
ished ; the only consequence is. that the judges of
the supreme and district courts are discharged
from the performance of the joint duties which
were previously imposed upon them. But is the
office of one judge of the supreme or of the dis-
trict courts infringed? Can any judge say, in
consequence of the abolition of the circuit courts,
I no longer hold my office during good behaviour ?
On this point, it was further alleged by the same
honorable member, that the law of the last session
inflicted another wound on the Constitution by
abolishing the district courts of Kentucky and
Tennessee. The gentleman was here deceived
by the same fallacy whrich misled him on the sub-
ject of the circuit courts. If he will give himself
the trouble of carefully reviewing the provisions
of the law, he will discern the sedulous attention
of the Legislature to avoid the infringement of
the offices of those judges. I believe the gentle-
man went so far as to charge us with appointing
by law those judges to new offices.
The law referred to, said Mr. B., establishes a
circuit, comprehending Kentucky, Tennessee, and
the district of Ohio. The duties of the court of
this circuit are directed to be performed by a cir-
cuit judge and the two district judges of Ken-
tucky and Tennessee. Surely it is competent for
the Legislature to create a court, and to direct
that it shall be holden by any of the existing
judses. If the LejB^islature had done with respect
to all the district judges what they have with re-
spect to those of Kentucky and Tennessee, I am
quite certain that the present objection would have
appeared entirely groundless. Had tbey directed
that all the circuit courts should be held by the
respective judges within the circuits, gentlemen
would have clearly seen that this was only an
imposition of a new duty, and not an appointment
to a new office.
It will be recollected, said Mr. B., that under
the old establishment, the district judges of Ken-
tucky and Tennessee were inyested generally with
the powers of the circuit judges. The ancient
powers of those judges are scarcely varied by the
fate law, and the amount of the change is, that
they are directed to exercise those powers in a
court formerly called a district, but now a circuit
court, and at other places than those to which
they were formerly confined. But the . district
judge nominally remains; his office both nomi-
nally and substantially exists, and he holds it now
as he did before, during good behaviour. I will
refer gentlemen to different provisions in the late
law, which will show beyond denial that the Le-
gislature carefully and pointedly avoided the act
of abolishing the offices of those judges.
The seventh section of the law provides that
the court of the sixth circuit shall be composed of
a circuit judge, "and the judges of the district
courts of kentucky and Tennessee." It is after-
* wards declared in the same section, ''that there
- shall be appointed, in the sixth circuit, a judge of
* the United States, to be called a circuit judge.
* who, together with the district judges of Tennes-
' see and Kentucky, shall hold the circuit courts
^ hereby directed to be holden within the same
* circuit." And, finally, in the same section it is
provided, "that whenever the office of district
' judge in the districts of Kentucky and Teones-
* see respectively shall become vacant, such va-
^ cancies shall respectively be supplied by the
^ appointment of two additional circuit judges in
' the said circuit, who, together with the clrcnit
' judge first aforesaid, shall compose the circuit
* court of the said circuit." Wnen the express
language of the law affirms the existence of the
office and of the officer, by providing for the con-
tingency of the officer ceasing to till the ofiKce.
with what face can gentlemen contend that the
office is abolished? They who are not satisfied
upon this point I despair of convincing upon any
other.
Upon the main question, said Mr. B., whether
the judges hold their offices at the will of the
Legislature, an argument of great weight, and.
645
HISTORY OP CONGRESS.
646
February, 1802.
Judiciaiy System,
H. opR.
accordin|^ to my humble judgment, of irresistible
force, still remams. The Legislative power of the
Government is not absolute, but limited. If it
be doubtful whether the Legislature can do what
the Constitution does not ezplicitljr authorize; vet
there can be no question that they cannot downat
the Constitution expressly prohibits. To main-
tain, therefore, the Constitution, the judges are
a check upon the Legislature. The doctrine I
know is denied, and it is therefore incumbent upon
me to show that it is sound.
It was once thought by gentlemen who now
deny the principle, that the safety of the citizen
and of the States rested upon the power of the
judges to declare an unconstitutional law void.
How vain is a paper restriction, if it confers nei-
ther power nor right ! Of what importance is it
to say, Cono^ress are prohibited from doin^ cer-
tain acts, if no legitimate authority exists in the
country to decide whether an act done is a prohib-
ited act? Do gentlemen perceive the consequences
which would follow from establishing the princi-
ple, that Congress have the exclusive right to de-
cide upon their own powers? This principle
admitted, does any Constitution remain ? Does
not the power of the Legislature become absolute
and omnipotent? Can you talk to them of trans-
gressing tneir powers when no one has a right to
judge of those powers but themselves? They do
what is not authorized, they do what is inhibited,
nay, at every step they trample the Constitution
under foot; yet tneir acts are lawful and binding,
and it is treason to resist them. How ill, sir, do
the doctrines and professions of these gentlemen
agree ! They tell us they are friendly to the ex-
istence of the States ; that they are the friends of
a federative, but the enemies of a consolidated.
General Government, and yet, sir, to accomplish
a paltry object, they are willing to settle a princi-
ple which, beyond all doubt, would eventually
plant a consolidated Government, with unlimited
nower, upon the ruins of the State governments.
Nothing can be more absurd than to contend that
there is a practical restraint upon a political body
who are answerable to none but themselves for
the violation of the restraint, and who can derive
from the very act of violation, undeniable justifi-
cation of their conduct.
If, said Mr. B., you mean to have a Constitu-
tion, you must discover a power to which the
acknowledged ri^ht is attached of pronouncing
the invalidity of tne acts of the Legislature which
contravene tne instrument. Does the power re-
side in the States ? Has the Legislature of a State
a riffht to declare an act of Congress void ? This
would be erring upon the opposite extreme. It
would be placing the General Government at the
feet of the State governments. It would be al-
lowing one member of the Union to control all
the rest. It would inevitably lead to civil dissen-
sion and a dissolution of the General Government.
Will it be pretended that the State courts have
the exclusive right of deciding upon the validity
of our laws ? I admit that they have the right to
declare an act of Congress void. But this right
they enjoy in practice, and it ever essentially must
exist, subject to the revision and control of the
courts of the United States. If the State courts
definitively possessed the right of declaring the in-
validity of the laws of this Government, it would
bring us in subjection to the States. The judges
of those courts, being bound by the laws of the
State, if a State declared an act of Congress un-
constitutional, the law of the State would oblige
its courts to determine the law invalid. This
principle would also destroy the uniformity of
obligation upon all the States, which should at-
tend every law of this Government. If a law
were declared void in one State, it would exempt
the citizens of that State from its operation, whilst
obedience was yielded to it in the other States.
I go further, and say, if the States or State courts
had a final power of annulling the acts of this
Government, its miserable and precarious exist-
ence would not be worth the trouble of a moment
to preserve. It would endure but a short time, as
a subject of derision, and, wasting into an empty
shadow, would quickly vanish from our sight.
Let me now ask if the power to decide up6n the
validity of our laws resides with the people ? Gen-
tlemen cannot deny this right to the people. I
admit that they possess it. But if, at the same
time, it does not belong to the courts of the United
States, where does it lead the people? It leads
them to the sallows. Let us suppose that Con-
gress, forgetful of the limits of their authority,
pass an unconstitutional law. They lay a direct
tax upon one State and impose none upon the
others. The people of the State taxed contest
the validity of the law. They forcibly resist its
execution. They are brought by the Executive
authority before the courts upon charges of trea-
son. Tne law is unconstitutional, the people have
done ric^ht, but the court are bound by the law,
and obliged to pronounce upon them the sentence
which it inflicts. Deny to the courts of the Uni-
ted States the power of judging upon the consti-
tutionality of our laws, and it is vain to talk of its
existing elsewhere. The infractors of the laws
are brought before these courts, and if the courts
are implicitly bound, the invalidity of the laws
can be no defence. There is, however, Mr. Chair-
man, still a stronger ground of argument upon
this subject. I shall select one or two cases to
illustrate it. Congress are prohibited from pass-
ing a bill of attainder; it is also declared in the
Constitution, that ^^ no attainder of treason shall
work corruption of blood or forfeiture, except
during the life of the party attainted." Let us
suppose that Congress pass a bill of attainder, or
thev enact that any one attainted of treason shall
forfeit to the use of the United States all the
estate which he held in any lands or tenements.
The party attainted is seized and brought before
a federal court, and an award of execution passed
against him. He opens the Constitution and
points to this line, '^no bill of attainder or ex post
facto law shall be passed.'* The attorney for the
United States reads the bill of attainder.
The court are bound to decide, but they have
only the alternative of pronouncing the law or the
Constitution invalid. It is left to them only to
647
HISTORY OF CONGRESS.
648
H. OF R.
Judiciary System,
February, 18Q2.
say that the law vacates the ConstitutioD, or the
Constitution avoids the la\\'. So in the other case
stated, the heir, after the death of his ancestor,
brings his ejectment in one of the courts of the
United States to recover his inheritance. The
law by which it is confiscated is shown. The
Constitution gave no power to pass such a law.
On the contrary, it expressly denied it to the Gov-
ernment. The title of ihe heir is rested on the
Constitution, the title of the Government on the
law. The effect of one destroys the effect of the
other; the court must determine which is ef-
fectual.
There are many other cases, Mr. Chairman, of
a similar nature, to which I might allude. There
is the case of the privilege of habeas corpus,
which cannot be suspended but in times of rebel-
li6n or of invasion. Suppose a law prohibiting
the issuing of the writ at a moment of profound
peace. Ifin such case the writ were demanded
of a court, could they say, it is true the Legisla-
ture were restrained from passing the law, sus-
pending the privilege of this writ, at such a time
as that which now exists, but their mighty power
has broken the bonds of the Constitution, and fet-
tered the authority of the court. I am not, sir,
disposed to vaunt, but standing on this ground I
throw the gauntlet to any champion upon the
other side. I call upon them to maintain, that in
a collision between a law and the Constitution,
the judges are bound to support the law, and an-
nul the Constitution. Can the gentlemen relieve
themselves from this dilemma? Will they say,
though a judge has no power to pronounce a law
void, he has a power to declare the Constitution
invalid.
The doctrine for which I am contending is not
only clearly inferrible from the plain language of
the Constitution, but by law has been expressly
declared and established in practice since the ex-
istence of the Government.
The second section of the third article of the
Constitution expressly extends the judicial power
to all cases arising under the Constitution, the
laws, dec. The provision in the second clause of
the sixth article leaves nothing to doubt. " This
Constitution, and the laws of^the United States
which shall be made in pursuance thereof, dbc.
shall be the supreme law of the land." The Con-
stitution is absolutely the supreme law. Not so
the acts of the Legislature. Such only are the
law of the land as are made in pursuance of the
Constitution.
I beg the indulgence of the Committee one mo-
ment, while I read the following provision from
the twenty-fifth section of the judicial act of the
year sevenieeri hundred and eignty-nine:
^*A final judgment or decree in any suit in the
highest court of law or equity of a State in which a
decision in the suit could be had, where is drawn in
question the validity of a treaty or statute of, or an au-
thority exercised under, the United States, and the de-
cision is against their validity, dec. may be re-examined
and reversed or affirmed in the Supreme Court of the
United States, upon a writ of error."
Thus, as early as the year 1789, among the first
acts of the Government, the Legislature explicitlf
recognised the right of a State court to declare a
treaty, a statute, and authority exercised under
the United States, void, subject to ihe revision of
the Supreme Court of the United States ; and it
has expressly given the final power to the Supreme
Court to affirm a judgment which is against the
validity either of a treaty, statute, or an aathority
of the Government.
I humbly trust, Mr. Chairman, that I have given
abundant proofs from the nature of our Govern-
ment, from the language of the Constitution, and
from Legislative acKnowledgment, that the judees
of our courts have the power to judge and deter-
mine upon the constitutionality of our laws.
Let me now suppose, that in our frame of gov-
ernment the judges are a check upon the Legisla-
ture; that the Constitution is deposited in their
keeping. Will you say afterwards that their ex-
istence depends upon the Legislature 1 That the
body whom they are to check has the power to
destroy them ? Will you say that the Constitu-
tion may be taken out of their hands, by a power
the most to be distrusted, because the only power
which could violate it with impunity ? Can any
thing be more absurd than to admit, that the
judges are a check upon the Legislature, and yet
to contend that they exist at the will of the Legis-
ture ? A check must necessarily imply a power
commensurate to its end. The political body de-
signed to check another must be independent of
it, otherwise there can be no check. What check
can there be when the power designed to be check-
ed can annihilate the body which is to restrain it ?
I go farther, Mr. Chairman, and take a still
stronger ground. I say, in the nature of things, the
dependence of the judges upon the Legislature,
and their right to declare the acts of the Legisla-
ture void, are repugnant and cannot exist toge-
ther. The tfoctrine, sir, supposes two rights — first
the right of the Legislature to destroy the office
of the judge, and the right of the judge to vacate
the act of the Legislature. You have a ri^ht to
abolish, by a law, the offices of the judges of the
circuit court; they have a right to declare the
law void. It unavoidably follows, in the exercise
of these rights, either that you destroy their rights,
or that they destroy yours. This doctrine is not
an harmless absurdity, it is a most dangerous
heresy. It is a doctrine which cannot be practised
without producing not discord only, but bloodshed.
If you pass the bill upon your table the judges
have a Constitutional right to declare it void. I
hope they will have courage to exercise that right ;
and if,sir^ I am called upon to take my side, stand-
ing acquitted in my conscience and before my
God, of all motives but the support of the Con-
stitution of my country, I shall not tremble at the
consequences.
The Constitution may have its enemies, but I
know that it has also its friends. I beg gentlemen
to pause before they take this rash step. There
are many, very many, who believe, if you strike
this blow! you infiict a mortal wound on the Con-
stitution. There are many now willing to spill
their blood to defend that Constitution. Are gen-
649
HISTORY OP CONGRESS.
650
February, 1802.
Judiciary System.
H. OP R.
tlemen disposed to risk the consequences? Sir, I
mean no tnreats, I have no expectation of appall-
ing the stout hearts of my adversaries ; out if
gentlemen are regardless of themselves, let them
consider their wives and children, their neighbors
and their friends. Will they risk civil dissension,
will they hazard the welfare, will they ieopard-
ize the peace of the country, to save a paltry sum
of money — less than thirty tnousand dollars?
Mr. Chairman, I am confident that the friends
of this measure are not apprized of the nature of
its operation, nor sensible of the mischievous con-
sequences wnich are likely to attend it. Sir, the
morals of your people, the peace of the country,
the stability of the Government, rest upon the
maintenance of the independence of the Judiciary.
It is not of half the importance in England, that
the judges should be independent of the Crown,
as it is with us, that they should be independent
of the Legislature. Am I asked, would you ren-
der the judges superior to the Legislature ? I an-
swer, no, but co-ordinate. Would you render
them independent of the Legislatlire ? I answer,
yes, independent of every power on earth, while
they behave themselves well. The essential in-
terests, the permanent welfare of society, require
this independence. Not, sir, on account of the
judge — that is a small consideration, but on ac-
count of those between whom he is to decide.
You calculate on the weaknesses of human na-
ture, and you suffer the judge to be dependent on
no one, lest he should be partial to those on whom
he depends. Justice does not exist where partial-
ity prevails. A dependent judge cannot be impar-
tial. Independence is, therefore, essential to the
purity of your Judicial tribunals.
Let it be remembered, that no power is so sen-
sibly felt by society^ as that of the Judiciary. The
life and property of every man is liable to be in
the hands of the judges. Is it not our great in-
terest to place our judges upon such high ground,
that no fear can intimidate, no hope can seduce
them. The present measure humbles them in the
dust, it prostrates them at the feet of faction, it
renders them the tools of every dominant party.
It is this effect which I deprecate, it is»this conse-
quence which I deeply deplore. What does rea-
son, what does argument avail, when party spirit
presides ? Subject ^our bench to the influence of
this spirit, and justice bids a final adieu to your
tribunals. We are asked, sir, if the judges are to
be independent of the people ? The question pre-
sents a false and delusive view. We are all the
people. We are, and as long as we enjoy our
freedom, we shall be divided into parties. The
true question is, Shall the Judiciary be perma-
nent, or fluctuate with the tide of public opinion ?
I beg, I implore gentlemen to consider the mag-
nitude and value of the principle which they are
about to annihilate. If your judges are independ-
ent of political changes, they may have their
preferences, but they will not enter into the spirit
of party. But let tneir existence depend upon the
support of the power of a certain set of men, and
tbey cannot be impartial. Justice will be trodden
under foot. Your courts will lose all public con-
fidence and respect. The judges will be support-
ed by their partisans, who in their turn will ex-
pect impunity for the wrongs and violence they
commit. The spirit of party will be inflamed to
madness; and the moment is not far off when
this fair country is to be desolated by civil war.
Do not say, that you render the judges depend-
ent only on the people. You make them depend-
ent on your President. This is his measure.
The same tide of public opinion which changes a
President, will change the majorities in the branch-
es of the Legislature. The Legislature will be the
instrument of his ambition, and he will have the
courts as the instrument of his vengeance. He
uses the Legislature to remove the judges, that he
may appoint creatures of his own. In effect, the
powers of the Government will be concentrated
in the hands of one man, who will dare to act
with more boldness, because he will be sheltered
from responsibility. The independence of the
Judiciary was the felicity of our Constitution. It
was this principle which was to curb the fury of
party upon sudden changes. The first moments
of power, gained by a struggle, are the most vin-
dictive and intemperate. Raised above the storm,
it was the Judiciary which was to control the fiery
zealj and to quell the fierce passions of a victorious
faction.
We are standing on the brink of that revolu-
tionary torrent, which deluged in blood one of the
fairest countries of Europe.
France had her National Assembly, more nu-
merous and equally popular with our own. She
had her tribunals of justice, and her juries. But
the Legislature and her courts were but the instru-
ments of her destruction. Acts of proscription
and sentences of banishment and death were pass-
ed in the cabinet of a tyrant. Prostrate your
judges at the feet of party, and you break down
the mounds which defena you from this torrent.
I am done. I should have thanked my God for
greater power to resist a measure so destructive to
the peace and happiness of the country. My fee-
ble efforts can avail nothin|^. But it was my duty
to make them. The meditated blow is mortal,
and from the moment it is struck, we may bid a
final adieu to the Constitution.
Mr. Randolph said, that he did not rise for the
purpose of assuming the gauntlet which had been
so proudly thrown by the Goliah of the adverse
party; not but that he believed even his feeble
powers, armed with the simple weapon of truth,
a sling and a stone, capable of prostrating on the
floor that gigantic boaster, armed capa-pie as he
was ; but tnat he was impelled by the desire to
rescue from misrepresentation the arguments of
his colleague, (Mr. Giles,) who was now absent
during indisposition. That absence, said Mr. R.,
is a subject of peculiar regret to me, not only be-
cause I could have wished his vindication to nave
devolved on abler han^s, but because he had to-
day lost the triumph which, yesterday, he could
not have failed to enjoy ; that of seeing his oppo-
nent reduced to the wretched expedient of per-
verting and mutilating his arguments through in-
ability to meet and answer them. Mr. R. said.
651
HISTORY OF C0NGEJ3SS.
652
H. OP R.
Judiciary System.
February, 1802.
that this was the strongest proof which could he
given of inadequacy to refute any position. He,
therefore, left to the gentleman the victory which
he had obtained over his own argumentb ; but,
while be felt no disposition to disturb him in this
enjoyment, he hoped he should be permitted to
correct some of the misstatements which had been
made of his colleague's observations.
In the view which he had taken of the conduct
of our predecessors, in the chain of whose meas-
ures the law now proposed to be repealed formed
an important link, the funding of the debt of the
United States, and the assumption of those of the
individual States, -were comprehended. An at-
tempt is made to construe this disapprobation into
a design of violating the public faith. Mr. R. de-
nied that one syllable had fallen from his col-
league, indicative of a right, or disposition on his
part, to withhold the payment of any public en-
fagements. Against those destructive measures
is colleague had raised his voice; against the
fatal and al>surd maxim, that a public debt was a
public blessing, he had indeed protested ; but not
a word escaped his lips, because no such sentiment
lurked in his heart, which could be construed into
a declaration that the present Legislature possess-
ed the same power over the engagements of form-
er Legislatures which they possessed over ordina-
ry laws ; that of modifying or abrogating them
with the same freeJom which had been exercised
in their establishment. Since the gentleman had
betrayed such peculiar sensibility on the subject
of the debt, Mr. R. relied on his support, when a
measure should be brought forward for its final
and rapid extinguishment, not by a sponge, but
by a fair reimbursement or one hundred cents for
every dollar due.
On other topics, the Algerine depredations, In-
dian war. &.C., it might as easily be shown that the
representation had been equally unfair. He should
not dwell upon them, because they were less cal-
culated to make the unfavorable impression on
the public mind, which had been attempted on
the subject of the debt. He would dismiss them
with a single remark: the uses to which these
incidents were applied, and not the events them-
selves, formed the subject of his colleague's anim-
adversions.
But to the long catalogue of unpopular acts
which have deprived their authors of (he public
confidence, the gentleman tells us, he and his
friends were " goaded" by the clamor of their op-
ponents. He solemnly assures us. that in the
adoption of those measures they clearly foresaw
the downfall of their power; but impressed with
a conviction that they were essential to the pub-
lic good, and disdaining all considerations of a
personal nature, they nobly sacrificed their politi-
cal existence on the altar of the general welfare ;
and we are called upon now to revere in them the
self-immolated victims at the shrine of patriotism.
These are, indeed, loftv pretensions ; and although
I shall not peremptorily deny, in this age of infi-
delity, I may be permitted to doubt them ; for I
call upon this Committee to decide whether, in
this day's discussion, the gentleman has evinced
that purity of heart, or that elevation of senti-
ment, which could justify me in clothing him
with the attributes of Curtius or of the Decii ?
In the wide range which the gentleman has
taken, the question how far the common law of
England is the law of the United Stales in their
confederate capacity, has been raised. We are
told " that the terms of the common law abound in
' every page, and in almost every line of the Cod-
* stitution ; that without it, that instrument is un-
^ intelligible and inefficent; that, therefore, it at-
' taches to the Constitution. Moreover, that it i^
' the law of the States, by the acknowledged prin-
^ ciple, that colonists carry to their newly adopted
^ country, so much of the law of their parent State.
' as is applicable to their new condition." That
the common law is to settle the meaning of com-
mon law phrases, few will feel disposed to deny:
that when the Constitution uses the term "court."
it does not mean "jury," and that by ''jury," b
not intended to express court, seems plain enough
to any capacity. J3ut because the common law
is to be resorted to for an explanation of these
and similar terms, does it follow that that indefinite
and undefinable body of law is the irrepealable law
of the land? The sense of a most imporuot
Ehrase, '^direct tax" as used in the Constitution,
as been, it is believed, settled by the acceptatioo
of Adam Smith; an acceptation, too, peculiar to
himself. Does the Wealth of Nations, therefore,
form a part of the Constitution of the United
States? Will gentlemen please to specify, also,
whether that common law which they have
adopted for the United States, be the common
law as it stood modified by statute in the reign of
Elizabeth and James the First, prior to the exist-
ence of the act of habeas corpus, divested of all
the salutary provisions afterwards introduced at
the Revolution ; or, whether it be the common
law of the time of George the Second ? Whether
we are to be governed by the common law of Sir
Walter Raleish and Captain Smith, or that which
was imported by Governor Oglethorpe; or on
which of the intermediate periods they have cho-
sen as fixing the common law of these States?
I wish especially to know, whether the common
law of libels which attaches to this Constitution,
be the doctrine laid down by Lord Mansfield, or
that which has immortalized Mr. Fox? And
whether the jurisdiction thus usurped over the
press, in defiance of an express amendatory clause,
which must be construed to annul every previous
provision, if any such there be, which comes within
its purview, be an example adduced to illustrate
the position, which I certainly shall never contest.
that '^ what the Constitution does not permit to
be done by direct means, cannot, constitutionally,
be indirectly effected?" But to reconcile us to
this usurpation, we are informed, that the princi-
f>les of the common law are favorable only to
iberty ; that they neither have been, nor can be
enlisted in the cause of persecution. If I did not
misunderstand the gentleman, he said, that no
prosecution had occurred under that law. He
has therefore never heard of the case of Luther
Baldwin. I speak of the New Jersey case ; nor
653
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654
February, 1802.
Judiciary System,
H. OP R.
that of Williams. Other instances, I learn from
high authority, have taken place in Vermont.
Mr. R. apologized for detaining the Commit-
tee so long on topics irrelevant to the subject. He
said he would oner some reasons in favor of the
expediency and constitutionality of the bill before
them. He had not heard any argument on this
occasion more satisfactory to him than those urged
at the time when the law was passed, in favor of
the expediency of the measure. He had waited
in expectation that gentlemen would endeavor to
prove, that the former judges, under a different
arrangement, would be inadequate to the duty of
holding the circuit courts. A belief that every
real objection to the former system might have
been obviated by some modification of this kind,
had induced him to dissent to the passage of the
law in the first instance. That dissent was re-
corded on the journals of the House ; and so many
members of the Committee stood in the same pre-
. dicament. that if a sense of his duty to himself and
the House were insufficient to deter him, that fact
alone, of which the gentleman was himself a wit-
ness, ought to have repressed the aspersions which
he ca^t upon a great portion of the Committee,
whom he represented as the mere puppets of Ex-
ecutive iufiuence, acting upon no convictions of
their own, but played off by an invisible, although
not unknown hand. Yes, sir, objections to this
system are treated as if altogether unheard of until
of late, although a very formidable minority have
uniformly been found opposed to it. Neverthe-
less, this is altogether the work of the Executive,
who, by the slightest expression of disapprobation,
could yet arrest the measure and save the Constitu-
tion.
Mr. R. said he was unhackneyed in the ways
of majorities ; his experience had been verv limit-
ed ; but was he to conclude, from these ooserva-
tions, that it was the 'common law, the uniform
usage heretofore of this Government, for this
House to be the mere instrument for effecting the
Executive will, a Chamber for en registering Presi-
dential edicts? It is said, that the document on
this subject was one which the Executive had no
right to lay before the House. When did the
right of the President to recommend modifications
of the Judiciary system cease? Such recommenda-
tions had heretofore formed a prominent feature in
two successive Executive communications made
at the commencement of two successive sessions
of Congress. Did the right of the Executive to
recommend, and of Congress to act, cease at the
precise period when the faultless model of the last
session was perfected? Mr. R. said, that the gen-
tleman from Delaware had taken such a range,
and thrown out such a vast deal of matter, that, in
attempting to reply to some of his observations,
he was necessarily led into many desultory re-
marks. The present system, it seems, was neces-
sary, from the inevitable corporeal infirmity of the
judges: the unavoidable effect of the tedious pro-
bation indispensable to that venerable station.
Let us compare the former practice with the
present theory. The Judge or one of the two
districts into which Virginia had been divided.
was contemporary with him at school. He is
certainly neither an infirm nor hoary sage. His
associate from Maryland had been an active and
gallant partisan at the siege of Pensacola, during
our Revolutionary war : not contending, however,
under those banners where you would have ex-
pected to find a man who occupied so dignified a
station under the Government of the United
States ; but fighting the battles of his King. Brave-
Iv, yet, alas! unsuccessfully contending against
tne spirit of insubordination and jacobinism which
threatens to sweep from the earth everything val-
uable to man, against which the gentleman from
Delaware is also eager to enter the lists. The
selections which have been made from either
House of Congress seem to have had as little re-
ference to age and experience, which are said to
be indispensable to the Judicial character. Upon
a subject connected with those appointments, we
have been told that the Executive had a right to
presume a vacancy in all cases where a judge of
an inferior tribunal had been appointed to a seat
on the bench of a superior court; and that the
new office vests, not at the time when the judge
is notified of his promotion, nor at the date of his
acceptance, but from the date of his commission.
Mr. K. .said, that he certainly did not mean to
contend with the gentleman from Delaware on
points of law, yet he would put a question to that
gentleman. It will readily be conceded, that the
vacating of the former office is the condition of
the acceptance of the latter. Suppose a judge,
after the date of his new commission, but prior to
his notification or acceptance thereof, perform a
Judicial act, was that act, therefore^ invalid?
Could his successor, on the receipt of his commis-
sion, exercise the functions of judge, prior to the
resignation of the former incumbent? Could any
office be at the same time in the possession of two
persons? Did not this doctrine imply a right on
part of the Government to anticipate the resigna-
tion of an^r jud|^e, to compel his assent to an act
vacating his office? The new commission, under
these circumstances, either did or did not give a
claim to its possessor on the office. If it did not. the
Executive had a right to withhold it. If it did, a
judge may be expelled from office, without his con-
sent, and provided at any time afterwards he shall
acquiesce, the expulsion is le^al. Besides, by what
authority does a member of this House hold his seat
under an election previous to his appointment of
district judge of North Carolina? For this office
a commission was issued, as I am credibly inform-
ed. But, sir, we shall be told, that the manner in
which this affair was transacted ought not to affect
our decision. It is with me an irrefragable proof
of the inexpediency of the law, and of course con-
clusive evidence of the expediency of its repeal.
But the Constitution is said to forbid it. And
here permit me to express my satisfaction, that
gentlemen have agreed to construe the Constitu-
tion by the rules of common sense. This mode
is better adapted to the capacity of unprofessional
men, and will preclude the gentleman from arro-
gating to himself, and half a dozen other charac-
ters in this Committee, the sole right of expound-
655
HISTORY OF CONGRESS.
656
H. OP R.
Judiciary System,
February, 1802.
ing that instrument, as he had done in the case of
the law which is proposed to be repealed. Indeed.
aR one of those who would be unwilling to de-
volve upon that gentleman the high-priestliood of
the Constitution, and patiently submit to techni-
cal expositions which I might not even compre-
hend, I am peculiarly pleased that we are invited
to exercise our understandings in the construction
of this instrument. A precedent, said to be quite
analogous, has been adduced — the decision of the
judges of Virffinia, on a similar question. A
pamphlet, entitled " A Friend to the Constitution,"
has been quoted. Public opinion informs me that
this is the production of the [len of a gentleman
who holds a pre-eminent station on the Federal
bench. Am I so to consider it ? If this be un-
derstood, it is entitled to high respect ; the facta.
at least; must be unquestionable.
The courts of Virginia consisted of one general
court of common law ; a court of chancery, com-
posed of three judges; and a court of admiralty.
The judges of all those courts held their offices
during good behaviour ; and did, by law, consti-
tute a court of appeals. The general court becom-
ing manifestly incompetent to the extensive duties
assigned to it, a system of circuit courts was adopt-
ed in 1787, and tne judges of the court of appeals
were appointed to ride the circuits. This law the
judges pronounced unconstitutional, and agreed,
unanimously, to remonstrate against it. After
lamenting the necessity of deciding between the
Constitution and the law, and that, in a case per-
sonally interesting to themselves, they say, '' on
' this view of the subject, the following alterna-
' tives presented themselves; either to decide the
' question, or resign their offices. The latter
' would have been their choice, if they could have
^ considered those questions as affecting theif in-
' dividual interests only." Yes, sir, and such was
the character of those men, that none doubted the
sincerity of this declaration. They then go on to
declare, that the Legislature have no right even
to increase their duties, by a modification of the
courts ; a privilege for which no one here has
contended. In respect, much more, it is believed,
to the characters of those venerable men, than to
this opinion^ the Legislature did not enforce the
new regulations. The law was new-modelled, a
separate court of appeals established, the judges
ofwhich were to be elected by joint ballot, in con-
formity with the Constitution. New members
. were added to the general court, and it was de-
clared to be their duty to ride the circuits. The
judges of chancery, of the general court, and court
of admiralty, who had not been elected, in pur-
suance of the Constitution, judges of appeals, but
on whom that duty was imposed bv law, were
relieved from the further discharge ot it. In this
arrangement several of the judges were under-
stood to have been consulted; and on the ballot,
the six senior judges were elected, five into the
court of appeals, and the sixth in the court of
chancery. Nevertheless, a^inst this law the
judges also protested, as an invasion of the Judi-
ciary establishment, denying the right of the Le-
gislature to deprive them of office in any other
mode than is pointed out in the Constitution, (im-
peachment;) but to make way for the present
salutary system, they do, in their mere free will.
resign their appointments as judges of the court
of appeals, and, as they do not hold any separate
commission for that office, which might be return-
ed, they do order the same to be recorded.
Now, sir, I shall not contend, as I certainly
might, and with great reason, that the practice of
Virginia must be considered as settling the Con-
stitutional doctrine of the State, the opinions of
individuals, however enlightened and respectable,
notwithstanding ; under which practice two chan-
cellors have been removed from their office of
judges in chancery, as well as of appeals, and the
judges of the general court and court of admiral-
ty also divested of their seats on the bench of the
court of appeals, althoua;h a court of appeals wa^
supposed necessary, and was retained in the new
system ; nor shall i insist on the disparity between
the stability of the judicial branch or Govern-
ment in the eye of the constitution of Virginia,
and that of the United States, respectively, as
surely I might. For the constitution of Virginia
has a retrospect to pre-existing Judicial establish-
ments, which experience had tested, which were
allowed to be beneficial, and which it is contended
were sanctioned by it. That of the United States.
formed when the Confederacy had no such estab-
lishments, is to be created, from time to time: in
other words, to be modified, as experience shall
point out their defects — this power being devolved
on a body constituted by express unaUsrable pro-
visions. No, sir, I shall not dilate upon these
forcible topics; I will concede, for argument-
sake, that the doctrine contended for by the JQdg»
of Virginia, was the true Constitutional doctrine,
and will apply it to the bill on your table, having
first applied it to the act on which it is intended
to operate. Previous to tlfe existence of that act.
the duty of judge of the circuit court was per-
formed by the judges of the Supreme Court, who
constituted a court of appeals, and by the judges
of the respective districts. These were judges of
the circuit court to every intent and purpose, as
completely as the judges of Virginia were judges
of appeals. By the operation of the law of the
last session, they have been divested o^thxt office.
and other persons have been appointed to it.
Much stress is laid, much ingenuity exercised to
make metaphysical distinctions between the coon
and the omce. I will grant all that gentlemen
contend for, that there is a wide distinction. Does
it affect the case? Does it alter the fact? The
late circuit courts were not only abolished — the
persons holding the office of judge of those courts
no longer hold it; they have neither been im-
peached, nor have they resigned. They have not
even accepted any new appointment inconsistent
with it, and by which it became vacant The
function of judge of the circut court does or does
not constitute an office. If it does, then the judges
of the supreme and district courts have been de-
prived ot their offices, (the discharge of whose
duties, be it remembered, constitutes no small part
of the consideration for which they receive their
. 657
HISTORY OF CONGRESS.
658
Febrdart, 1802.
Judiciary System,
H. opR.
salaries.) If it does not, then the circuit judges
are not now about to be deprived of their offices.
On the passage of the law of last session, did we
hear any protest against its unconstitutionality
from the supreme or district courts? Of any re-
signations of the office of judge of the circuit court,
in order " that a salutary system might take ef-
fect 1" And yet, sir, is not that office as distinct
from that of supreme or district judge, as the office
of judge of appeals in Virginia is from that of
judge of the general court, chancery, or admiral-
ty 1 Are not the jurisdictions of those courts sep-
arate and distinct? Both never having original
jurisdiction of the same subjects ; and an appeal
lying from the inferior to the superior tribunal, as
in Virginia, although the officers of those tribu-
nals may be the same individuals? What, then,
b the difference between taking the office of ap-
pellate iurisdiction from the judge who possessed
original jurisdiction, or taking the office of origi-
nal jurisdiction from the appellate judge? How
is the independence of the judf e more affected by
the one act than by the other ?
To prove the unconstitutionality of this bill,
then, by a recurrence to the doctrine of the judi-
ciary of Virginia, is to prove the unconstitution-
ality of the Taw of which it will effect the repeal.
And no argument has been, or, in my poor opin-
ion, can be, adduced^ to prove the unconstitution-
ality of the one, which will not equally apply to
the other. No, sir, gentlemen are precluded by
their own act from assuming the ground of the
judges of Virginia ; they are obliged to concede
thai we have the power, because they have al-
ready exercised it, of modifying the courts, and
here they concede the question. They tell you
that this, however, must, to be Constitutional, be
a " bona fide" modification. It becomes them to
prove, then, that this is Sifnalajide modification.
Gentlemen have not, they cannot meet the dis-
tinction between removing the judges from office
for the purpose of putting in another person, and
abolishing an office, because it is useless or oppres-
sive. Suppose the collectors of your taxes neld
their offices b^ the tenure of good behaviour,
would the abolition of your taxes have been an
infraction of that tenure ? Or would you be
bound to retain them, lest it should infringe a
private right ? If the repeal of the taxes would
be an infringement of that tenure, and therefore
unconstitutional, could you ring all the changes
upon the several duties on stamps, carriages, stills.
<fcc., and, because you had retained the man ana
any one of these offices without diminishing his
emoluments, abolish the others ? Would uot this
be to impair the tenure of the office which was
abolished, or to which another officer might have
been appointed by a new regulation ? Have not
the judges, in the same manner, been deprived of
one of their offices ? And is not the tenure as
completely impaired thereby, as if the other had
been taken away also ? Although it will be grant-
ed that the tenant is not so much affected, since,
with one office, he has the salary formerly attach-
ed to both.
I agree that the Constitution is a limited grant
of power, and that none of its general phrases
are to be construed into an extension of that grant.
I am free to declare, that if the intent of this
bill is to get rid of the judges, it is a perversion of
your power to a base purpose; it is an unconsti-
tutional act. If, on the contrary, it aims not at
the displacing one set of men, from whom you
differ in political opinion, with a view to intro-
duce others, but at tne general good by abolishing
useless offices, it is a Constitutional act. The quo
animo determines the nature of this act, as it de-
termines the innocence or guilt of other acts.
But we are told that this is to declare the Judi-
ciary, which the Constitution has attempted to
fortify against the other branches of Government,
dependent on the will of the Legislature, whose
discretion alone is to limit their encroacnments.
Whilst I contend that the Legislature possess this
discretion, I am sensible of the delicacy with
which it is to be used. It is like the power of im-
peachment^ or of declaring war, to oe exercised
under a high responsibilitv- But the power is
denied since its exercise will enable flagitious men
to overturn the Judiciary, in order to put their
creatures into office, and to wreak their vengeance
on those who have become obnoxious by their
merit. Yet the gentleman expressly says, that
arguments drawn from a supposition of extreme
political depravity, prove nothing; that every
Government pre-supposes a certain degree of hon-
esty in its rulersj and that to argue from extreme
cases is totally inadmissible. Yet the whole of
his argument is founded on the supposition of a
total want of principle in the Legislature and
Executive. In other words, arguments drawn
from the hypothesis are irresistible when urged
in favor of that gentleman's opinion ; when they
militate against Yiim, they are totiilly inapplica-
ble. It is said that the bill on your table cannot
constitutionally be passed, because unprincipled
men will pervert the power to the basest of pur-
poses ; that, hereafter, we may expect a revolu-
tion on the bench of justice, on every change of
party^, and the politics of the litigants, not the
merits of the case, are to govern its decisions.
The Judiciary is declared to be the guardian of
the Constitution against infraction, and the pro-
tection of the citizen, as well against Legislative
as Executive oppression. Hence the necessity of
an equal independence of both. For it is declared
to be an absurdity, that we should possess the
power of controlling a department of Government
which has the right of checking us ; since there-
by that check may be either impaired or annihil-
ated. This is a new doctrine of check and bal-
ancCj according to which the Constitution has
unwisely ffiven to an infant Legislature the power
of impeaching their guardians, the judges. Ap-
ply this theory to the reciprocal control of the
two branches of the Legislature over each other
and the Executive, and of the Executive over them.
But sir, this law cannot be passed, because the
character of the bench is to be given to it bj the
Legislature, to the entire prostration of its inde-
pendence and impartiality. It will be cone eded.
that measures, such as have been portrayed, will
659
HISTORY OP CONGRESS.
660
H. OP R.
Judiciary System,
February, 1802.
never be taken, unless the sentiment of the roliag
party is ready to support them. Although gen-
tlemen contend, that the office of judge cannot be
abolished, they are not hardy enough to deny
that it may be created. Where then, sir, is the
check, supposing such a state of things as the gen-
tleman has imagined, ^and which he has also de-
clared cannot be conceived.) which shall prevent
un})rincipled men from effecting the same object
by increasing the number of judges, so as to over-
rule, by their creatures, the decisions of the courts ?
Would not public opinion be as ready to sanction
the one as the other of these detestable acts?
Would not the same evil which has excited such
apprehension in the minds of gentlemen, be thus
effected by means even more injurious than those
which they have specified ? Without any breach
of the Constitution an unprincipled faction may
effect the end which is so much alpprehended from
the measure now contemplated to be adopted. I
might add, that, when the public sentiment be-
comes thus corrupt, the ties of any Constitution
will be found too feeble to control the vengeful
ambition of a triumphant faction. The rejection
of this bill does not secure the point which has
furnished matter for so much declamation. Its
friends are represented as graspin^^ at power not
devolved upon them by the Constitution, which
hereafter is to be made the instrument of destroy-
ing; every judicial office, for the purpose pf reviving
them and filling the places with their partisans.
I have long been in the habit of attending to
the arguments of the gentleman from Delaware,
and I have generally round, in their converse, a
ready touch-stone, the test of which they are rare-
ly calculated to withstand. If you are precluded
from passing this law, lest depraved men make it
a precedent to destroy the independence of your
Judiciary, do you not concede that a despe-
rate faction, finding themselves about to be dis-
missed from the confidence of their country, may
pervert the power of erecting courts, to provide
to an extent for their adherents and themselves?
and that however flagrant that abuse of power,
it is remediless, and must be submitted to ? Will
not the history of all Governments warrant the
assertion, that the creation of new and unnecessa-
ry offices, as a provision for political partisans, is
an evil more to be dreaded than the abolition of
useless ones ? Is not an abuse of power more to be
dreaded from those who have lost the public con-
fidence than from those whose interest it will be
to cultivate and retain it ? And does not the doc-
trine of our opponents prove that, at every change
of administration, the number of your judges are
probably to be doubled ? Does it not involve the
absurdity that, in spite of all Constitutional pro-
hibitions. Congress may exercise the power of
creating an indefinite number of placemen, who
are to he maintained through life at the expense
of the community ? But, when these cases are
cited, you are gravely told that they suppose a
degree of political depravity which puts an end
to all argument. Here, sir, permit me to state an
important difference of opinion between the two
sides of this House. We are accused of an am-
bitious usurpation of power ; of a design to de-
stroy a great department of Government, becaase
it thwarts our views, and of a lawless thirst of
self-aggrandizement which no consideration can
restrain. Let us not be amused by words. Let
us attend to facts. They will show who are con-
tending for unlimited^ and who for limited power.
The opponents of this bill contend that they did
possess the power of creating offices to an indefi-
nite amount ; which, when created, were beyond
the control of the succeeding Legislature. They,
of course, contend for the existence of such a power
in the present Legislature, for whose exercise there
is no security but their self-respect. In other
words, that if the present majority should incur
the suspicion of the people, they may, as soon as
there is any indication of their harins forfeited
the public confidence, on the signal of their dis-
missal from their present station, make ample and
irrepealable provision for themselves and their
adherents, by the creation of an adequate number
of judicial offices. Now, sir, this is a power
which we reject, though it is insisted that we
possess it. We deny that such an authority does
exist in us. We assert that we are not clothed
with the tremendous power of erecting, in defi-
ance of the whole spirit and express letter of the
Constitution, a vast judicial aristocracy over the
heads of our fellow-citizens, on whose labor it is
to prey. Who, then, are, in reality, the advocates
of a limited authority, and who are the champi-
ons of a dangerous and uncontrollable power? In
my estimation, the wisest prayer that ever was
composed is that which deprecates the being led
into temptation. I have no wish to be exposed
myself, nor to see my friends exposed, to the dan-
gerous allurements which the adverse doctrine
holds out. Do gentlemen themselves think that
the persons, whom I see around me, ought to be
trusted witn such powers? Figure to yourselves
a set of men, whose incapacity or want of princi-
ple have brought on them the odium ot their
country, receiving, in the month of December, the
solemn warning, that on the fourth of March fol-
lowing, they are to be dismissed from the helm
of government ; establish the doctrine now cen-
tended for, and what may we not expect 1 Y^
sir, the doctrine advanced by our oppoaents !:>
that of usurpation and ambition. It denies the
existence of one power by establishing another
infinitely more dangerous ; and this you are toU
is to protect, through the organ of an independ-
ent judiciary, the vanquished party from the pei>
secution of their antagonists, although it has bees
shown that, by increasing the number of judges,
any tone whatever may G>e given to the bench.
The theory for whicn gentlemen contend seem^
to me far-fetched and overstrained. A mightr
enginery is set in motion, which to all ^ood pur-
poses is ineffectual, although formidable in the
perpetration of mischief. Ii, however, the peofle
should be of a different opinion, I trust that at the
next election they will apply the Constitutional
corrective. That is the true check ; every other
check is at variance with the principle, that a free
people are capable of self-government.
661
HISTORY OF CONGRESS.
662
February, 1802.
Judiciary System.
H.opR.
But, sir. if you pass the law, the judges are to
put their veto upon it by declaring it unconstitu-
tional. Here is a new power, of a dangerous and
uncontrollable mature, contended for. 'The decis-
ion of a Constitutional question must rest some-
where. Shall it be confided to men immediately
responsible to the people, or to those who are ir-
responsible? for the responsibility by impeach-
ment is little less than a name. From wnom is
a corrupt decision most to be feared ? To me it
appears that the power which has the ri^ht of
passing, without appeal, on the validity of your
laws, is your sovereign. But an extreme case is
put ; a bill of attainder is passed ; are the judges
to support the Constitution or the law? Shall
they obey God or Mammon ? Yet you cannot
argue from such cases. But, sir, are we not as
deeply interested in the true exposition of the
Constitution as the judges can be? With all the
deference to their talents, is not Congress as ca-
pable of forming a correct opinion as they are ?
Are not its members acting under a responsibility
to public opinion, which can and Vill check their
aberrations from duty ? Let a case, not an ima-
ginary one, be stated: Congress violate the Con-
stitution by fettering the press ; the judicial cor-
rective is applied to ; far from protecting the lib-
erty of the citizen, or the letter of the Constitu-
tion, you find them outdoing the Legislature in
zeal; pressing the common law of England to
their service where the sedition law did not ap-
ply. Suppose your reliance had been altogether
on this broken stafT, and not on the elective prin-
ciple ? Your press might have been enchained
till doomsday, your citizens incarcerated for life,
md where is your remedy ? But if the construc-
tion of the Constitution is left with us, there are
do longer limits to our power, and this would be
true if an appeal did not lie through the elections,
from yifjo the nation, to whom alone, and not a
lew privileged individuals, it belongs to decide,
Q the last resort, on the Constitution. Gentle-
mea tell us that our doctrine will carry the peo-
ple to the gallows if they suffer themselves to be
nisled into the belief that the judges are not the
?xpositors of the Constitution. Their practice
las carried the people to infamous punishment,
0 fine and imprisonment ; and had they affixed
he penalty of death to their unconstitutional
aws, judges would not have been wanting to con-
luct them to the gibbet.
A case in the Supreme Court has been men-
ioned. I certainly do not mean to put my opin-
OQ in competition with that of the gentleman
Tom Delaware on a professional subject ; but I
cannot agree with him that the granting of the
rule was not an assumption of tne jurisdiction.
Suppose a motion made in a court of Virginia
br a rule to be served on the Governor of Massa-
:husetts, to show cause why a mandamus should
lot issue, commanding him to do a specific act ;
o my unlettered judgment the acceptance of the
notion would be to presume, that if the Gover-
lor could not show cause, the mandamus might
ssue. Would not nay court reject such a motion,
)n the consideration that the Chief Magistrate
of another State was not amenable to their juris-
diction? The gentleman from Delaware, doubt-
less, recollects, and, probably, better than I do, for
I believe he was a spectator of the trial, the refu-
sal of a subpoena to a man under a criminal pros-
ecution, (I* allude to the case of Cooper, in Phila-
delphia,) to be served on the President, as a wit-
ness on the part of the prisoner. Was that a sub-
ject of inferior magnitude to a mere question of
municipal regulation ? This court, whic h it seems
has lately become the guardian of the feeble and
oppressea, against the strong arm of power, found
itself destitute of all power to issue the writ.
Was it because of the influence and interest of
that persecuted inan, or of his connexions, that it
was unnecessary at that time to exert that pro-
tecting power? No, sir, you may invade the press;
the courts will support you, will outstrip you in
zeal to further this. great object; your citizens
may be imprisoned and amerced, the courts will
take care to see it executed ; the nelpless foreign-
er may, contrary to the express letter of your
Constitution, be deprived of compulsory process
for obtaining witnesses in his defence; the courts,
in their extreme humility, cannot find authority
for granting it ; but touch one cent of their salaries,
abolish one sinecure office which the judges hold,
and they are immediately arrayed against the laws,
as the cnampions of the Constitution. Lay your
hands on the liberties of the people, they are tor-
pid, utterly insensible; but afTect their peculiar
interest, and they are all nerve. They are said
to be harmless, unaspiring men. Their humble
pretensions extend only to a complete exemption
from Legislative control ; to the exercise of an
inquisitorial authority over the Cabinet of the
Executive, and the veto of the Roman Tribu-
nate upon all your laws, together with the estab-
lishing any body of laws which they may choose
to declare a part of the Constitutidn. Grant this
authority, sir, to your judges, and you will have a
Constitution which gentlemen who are such ene-
mies to dumb legislation may indeed approve, be-
cause it is the very reverse of that which has
been the object of their animadversions. To you
will indeed belong the right of discussing — there
ends your power ; the judges are to decide, and
without appeal. In their inquisitorial capacity,
the Supreme Court, relieved from the tedious labor
of investigating judicial points by the law of the
last session, may easily direct the Executive by
mandamus, in what mode it is their pleasure that
he should execute his functions. Tney will also
have more leisure to attend to the Legislature,
and forestall, by inflammatory pamphlets, their
decisions on all important questions; whilst, for
the amusement of the public, we shall retain the
right of debating but not of voting.
A new mode of appeal — that of the sword —
has been lately produced. It is worthy of re-
mark, that the era of this appeal commenced with
the downfall of the power of the last Adminis-
tration. The political opponents of that gentle-
man have set him an example of which, f hope,
he and his friends will profit. They knew that
the Constitution had been violated. It was no
663
HISTORY OF CONGRESS.
664
H. OF R.
Judiciary System.
February. 1802.
business of speculation, but a plain matter of
fact. What was their conduct ? They preferred
submission to civil dissension. They addressed
themselves to the good sense of the community,
and their judgment has been affirmed by the peo-
ple, through the medium of the elections. But,
sir, another objection is held up as fatal to the bill
on your table : that it diminishes the salaries of
the district judges of Kentucky and Tennessee,
by repealing the law which increased them. Let
us examine this fact. By this very law the courts
of those districts were expressly abolished ; the
office of jud^e of those courts was destroyed.
The men. it is true, were retained, and a judicial
office given them ; but an office entirely different
from the former, with distinct functions and ju-
risdiction, and with different salary. We pro-
pose to restore those judges to their old offices by
abolishing the new ones, to which they never
were Constitutionally appointed. If their ap-
pointment was, however, Constitutional, I leave
It to the Committee to decide, whether the district
judge of Kentucky might not, on the theory of
our adversaries, demand both salaries, since you
had no right to take away his old office and sal-
ary ? I have not the pleasure of a personal ac-
quaintance with the gentleman who fills that of-
fice ; but his reputation is too hiffh to lead me to
suppose such a claim possible. I mean no disre-
spect to him, far from it, in putting this case. In-
stead, as has been asserted, of rendering the office
of judge a sinecure, as a pretext for abolishing it,
we propose to restore the establishment to its
primitive purity ; to give the iudges, both of the
district and supreme courts, duties to perform —
the latter being, it seems, now destitute of any
other employment than keeping the consciences of
the inferior courts. We mean to restore the dis-
trict judges to their office of circuit judge, for ex-
ercising whose duties they have been amply paid
by the public ; to restore the judges of the Su-
preme Court to the same office of which they
nave been deprived, not believing a sinecure court
of appeals to be desirable. Whence then the
clamor that the judicial authority is to be per-
verted to the vile purpose of wreaking party ven-
geance ? Suppose a case to occur, are not the per-
sons who are to decide of the same political cnar-
acter with the minority 1 Would that gentleman
have any cause to fear the decision of a contro
yersy with a person of a different political com-
plexion, because of that difference ? Is not the
Judiciary left precisely in the state in which it
was a twelvemonth ago ? Are not the same prin-
ciples to govern, and the same individuals to
decide ?
It is not, however, on account of the pal-
try expense of the new establishment that I wish
to put it down. No, sir, it is to give the death-
blow to the pretension of rendering the Judiciary
an hospital for decayed politicians ; to prevent the
State courts from being engulfed by those of the
Union ; to destroy the monstrous ambition of ar-
rogating to this House the right of evading all
the prohibitions of the Constitution, and holding
the nation at bay.
If gentlemen dread the act which we are about
to pass, they will remember that they have beeo
the means of compelling us to it. They ought to
have had the forbearance to abstain from such a
measure at such a crisis. They have forced upon
us the execution of a painful duty by their owe
want of prudence. If they wished the judges,
like the tribe of Levi, to have been set apart from
other men for the sacred purposes of justice, they
should have considered well before they gave to
publicans and sinners the privilege of the hi^h
priesthood. It is said that there is irrefragaue
proof in the small ness of the salaries annexed to
them, that those offices were not established under
any improper bias. If such bias had existed.
$10,000, or a larger sum, might have been given.
To execute a proposition of this sort, I believe
nerve would have been found wanting. On that,
as on another occasion which has been mentioned,
we should have had blank votes. This is, how-
ever, triumphantly brought forward as an instance
of the want of power in one Legislature over the
acts of another. The President's salary mi^hi
have been increased, or that of the judges, to a
million or more of dollars ; where would be yooi
remedy ? I will tell gentlemen : in a refusal of
appropriation. Who would hesitate in such a
case ? The salary might exceed the annual rev-
enue. This, too. is another instance, I suppose, of
the inadmissibility of extreme cases. I should
not hesitate, sir, to refuse an appropriation in such
a case, and throw myself on the good sense of
my country.
The example of a mighty nation has been hdd
up as a solemn warning against an act ^nrhich is
said to prostrate the barriers of the CoDstitutioo ',
to that example be the decision of this question
referred. A Government entrenched beyond the
reach of public opinion, had for ages been accu-
mulating one abuse upon another ; against an au-
thority which time served but to render more in-
tolerable, the nation was compelled to seek refuge
in a recurrence to revolutionary principles. And
are we, therefore, to sanction a construction of the
Constitution which claims irresponsibility for pub-
lic agents? Which allows no remedy for gner-
ances but revolution, and that perhaps when a re-
currence to such a measure shall be too late?
Who, after such an example, ought to contend for
a perversion to individual aggrandizement of that
power which was delegated for the public good t
I have endeavored, Mr. Chairman, in my poor
desultory way, to repeat some of the arguments
which have been offered by the gentleman from
Delaware. Upon some topics it has been extreme-
ly painful to me to dilate; thev could not hav€
been avoided ; they were obtruded upon me« There
is one, however, on which it may be expected I
should say something. I believe it unnecessary:
the poison carries with it its own antidote. Who
could have expected such remarks from that gentle-
man 1 If, however, he is now anxious to protect
the independence of this and the othea House ot'
Congress against Executive infiuence, regardless
of his motives, I pledge myself to support any meas-
ure which he may bring forward for that purpose ;
665
HISTORY OF CONGRESS.
666
February, 1802.
Judiciary System,
H. ofR.
and I believe I may venture to pledge every one
of my friends.
The Committee now rose, and the House ad-
journed till Tuesday next.
Tuesday, February 23.
JUDICIARY BILL.
The House again resolved itself into a Com-
mittee of the whole House on the bill sent from
the Senate, entitled '^An act to repeal certain acts
respecting the organization of the Courts of the
United States, and for other purposes."
Mr. HuGER. — I have endeavored to catch your
eye, Mr. Chairman, at this time, under the expec-
tation and in the hope, that as the Committee have,
during the two last davs, enjoyed a vacation from
public business^ I shall run the less risk of ex-
nausting its patience, and may calculate the more
largely on the good nature and indulgence of gen-
tleoien, in the course of thd few observations I
shall venture to submit to their consideration.
Little accustomed to deliver my sentiments before
a public audience, from my mode and habits of
life seldom obliged even to concentrate my ideas
on a particular subject. I have at no time presumed
to address this honorable body but with great diffi-
dence, with the utmost deference. Never, I can
truly say, have I felt more strongly and sincerely
these sensations than at the present moment — nor
have I withoutgreat difficulty, and after much hes-
itation, ventured lo offer myself to your re^rds,
and take possession of the floor. Believing how-
ever, as I do, that the dearest interests of the com-
munity, the very existence of our national Qovern-
ment and Union, are involved in this momentous
question, I feel myself compelled, in duty and in
conscience, to express my dissent, and enter my
protest against the (in my humble opinion, uncon-
stitutional and mischievous) measure, which we
are now called upon to adopt, in language more
strong and decided than might be conveyed by a
silent vote.
When I was before up, Mr. Chairman, on the
motion for the postponement, made by the mem-
ber from Delaware, I took occasion to express my
regrets, that a Constitutional point of the first mag-
nitude and importance should be brought forward
at a moment so inauspicious to a fair and impar-
tial investigation of it ; at a time when the passions
of gentlemen had been so greatly excited ; when
party feelines and party zealmust necessarily have
so powerful an influence on their minds; when
they had just gained, after a lonff and irritating
strogglc, a complete victory over their political op^
ponents, and found themselves at a moment's warn-
ing, put in possession of the whole power of the
Grovernnaent. I could not hut lament and deplore
the fallibility of human nature, and what appeared
to me to be the infatuation of men, whom I knew
to be wise and honorable. I deprecated and pro-
tested ajgainst the haste and precipitancy, with
which this measure was so unnecessarily hurried
on for consideration, and conjured gentlemen to
pause and consider whether it was at this moment,
and under the present circumstances, that they
ought to give a loose to their feelings, and urge the
House to decide irrevocably and finally a great and
all important national and Constitutional question;
involving in its decision the prostration and com-
plete overthrow of the only bar, the only efficient
check, which the Constitution had provided, to
their newly acquired power ; implicated, as it un«
fortunately was, with another subject, peculiarly
obnoxious to them, as* a party, and necessarily ex-
citing in their minds so many unpleasant and ir-
ritating recollections. Now, sir, let me ask, I sub-
mit it to the candor of the Committee to determine,
whether the course which has been pursued, and
the occurrences which have since taken place, do
not fully warrant and clearly evince the correct-
ness and propriety of the observations I made on
that occasion ? Which of the honorable gentlemen,
who have advocated the measure now submittea
to your consideration — which of them I pray you,
has been able to divest himself of his party feelings
and enthusiasm, and laying aside all extraneous
matter, has confined himself to the real merits of
the question ? An honorable member from Virginia
(Mr. Giles,) not now in his place, who has, how-
ever, taken an active part in the debate, and who,
without disparagement to other gentlemen may be
regarded as the premier, or prime minister of the
day, promised us on a former occasion that he would
endeavor to take this course. He told us, that if
party sensations ever could be buried, the subject
of the bill before us was the most proper to induce
both sides of the House to make an effort to that
effect — that he hoped and sincerely wished all ex-
traneous and foreign matter might be laid aside,
and that gentlemen would meet the question with
coolness and temper, and make up their opinions
on the subject with a view merely to the simple*
merits of the case. And if I am not greatly mis-
taken, the honorable member pledged himself, that
he would endeavor to enforce this doctrine by his
own example. But what was the fact ? Had that
gentleman confined himself in the same degree to
the real merits of the case ? Had he not on the
contrary put his memory and invention equally to
the racic, in order to ferret out proper subjects for
irritation, and to excite to the highest pitch the
party feelings and the party spirit of the Commit-
tee ? Had he not gone back to the very commence-
ment of the Gk)vernment, giving an ex parte his-
tory of all its operations for twelve long years, and
brought to our recollection every topic, every sub-
ject, which during this period had oeen conjured
up and made use of to prejudice and inflame the
public mind against those who have heretofore
administered the Government? He had not been
satisfied to avail himself even of living objects, but
had raked up the ashes of the dead^ not certainly
to prove the expediency or constitutionality of the
measure proposed, but for the charitable purpose
of throwing an odium on his political opponents.
So far was he indeed from confining himself, as
he had promised, to the point in dispute, that his
sole aim, his only object, would seem to have been
to show that the act of the last session was passed
with party views, and party purposes, and upon
the same grounds ought now to be done away.
667
HISTORY OF CONGRESS.
66^
H. OP R.
Judiciary System.
Febrdart, 1802.
When a gentleman of such high talents and
extensive acquirements, addresses himself so much
to the passions and party feelings, and so little to
the reason and understanding of his audience,
does it not, sir, afford a strong presumption that
he is neither convinced of the soundness of the
doctrine he advances, nor satisfied with the strength
of the arguments he has to adduce in support of
the measure he wishes to carry ?
I observe, Mr. Chairman, on running my eye
over the notes which I have taken in tne course
of the present debate, one circumstance which has
been noticed bv several gentlemen, and upon
which they dwell with apparent triumph. They
tell us that the members of the present Congress
were elected with a view to the repeal of the act
of the last session ; that the people have thereby
shown their disapprobation of the new organiza-
tion of the Judiciary then adopted^ and have ex-
pressed in a manner not to be misunderstood their
sentiments in favor of the Constitutional doctrine
now contended for. Gentlemen should really,
however, consult facts and dates, before they in-
dulge themselves in these round assertions. Is it
not, sir, in the present instance, notorious to every
body that the great majority, three-fourths at
least, of the members of the present Congress,
were chosen antecedent to the passage of the law
in question? The elections, it is wellknown, had
taken place in South Carolina, North Carolina,
Pennsylvania, New Jersey, New York, and, I be-
lieve, all the New England States, before it was
adopted. How, then, can gentlemen pretend to
tell us at this day that the majority of the House
were elected with a view to the repeal of a law
which was not in existence at the time of their
elections, and that the people had in this way ex-
pressed tneir opinions and sentiments on a Con-
stitutional question, which could not, in the na-
ture of things, have been before them?
I shall now, sir, and before I proceed to the dis-
cussion of the main question, beff leave to say a
few words with respect to the document No. 8,
which was presented to this House by the Exe-
cutive, for the purpose of throwing additional
light on the subject of the Judiciary, and which
has been printed and dispersed throughout the
continent with so much diligence and liberality.
But allow me, sir, in the first place, to call the at-
tention of the Committee to the President's Mes-
sage at the commencement of the session, and re-
mmd them of what he there says on the subject.
Speakinff of the Judiciary, he expresses himself
in the following words :
^ The Judiciary system of the United States, and
especially that portion of it recently erected, will of
course present itself to the contemplation of Congress ;
and that they may be able to judge of the proportion
which the institution bears to the business it has to
perform, I have caused to be procured from the several
States, and now lay before Congress, an exact state-
ment of all the causes decided since the first establish-
ment of the courts, and of those which were depend-
ing, when additional courts and judges were brought to
their aid."
I know not, sir, whether this part of the Mes-
sage made the same impressions on the mind of
every gentleman who heard it read; but to m''
and all those to whom I have spoken on the sub-
ject, it certainly did appear to hold out the id?a
that the Executive had caused to be procared
from the several States, and then laid before Con-
gress, an exact statement of all the causes decided
since the first establishment of Federal courts.
and which were still depending before them. For
myself, I did understand and expect that we were
to have a complete and general view of the Judi-
ciary in all its branches and ramifications. I ob-
serve, moreover, that all those gendemen who
either in this or the other branch of the Legisla-
ture, have referred to document No. 8, acted ao-
der this impression, and spoke of it as affordiDg a
fi^eneral view of all the business which had been
brought before the various and different coorte of
the United States. And such, in my humble
opinion, ought in fa%t to have been the state-
ment. We ouffht to have had a full and not a
partial view of the subject, if it was necessary
that we should have any official information at
all with respect to it. Instead, however, of a gen-
eral and comprehensive view of all the business
before the Federal courts, we have only a partial
and incorrect statement of the business which has
been brought before a proportion (not all even o!
these) of the circuit courts under the old estab-
lishment : the very courts whose organization ve
contend was defective, and which the honorable
and learned member from Delaware has proren
beyond all possibility of doubt to have been fouDd
so very inconvenient in practice that suitors were
driven from them, and forced, however agaia*^
their inclination, to have recoiirse to other tribu-
nals. If the document, therefore, incorrect as ii
avowedly is, proves anything, it goes to establi^a
what we aver and contend lor, to wit, that these
courts were heretofore improperly organized, and
did not affbrd that prompt and equal justice wbicii
the people of the United States have a right to
expect, and ought to find in the national tribu-
nals. And although I have not had an opportu-
nity of procuring any information on the subject
from my own immediate State, nor can be ex-
pected, being[ no professional man, to have acquir-
ed any practical knowledge of the business of the
courts m the various parts of the Union, yet I
have casually received some information from »
neighboring State, which will at once show no-
der how different an aspect the subject would pre-
sent itself; how mucn more considerable the
quantity of business brought before the Federa;
Courts would appear to have been had there been
presented to our view a general statement of all the
causes which have been or are now depending ic
all the different courts. It has been stated to m*
on authority upon which I have everv reason f
rely, that the President had applied for cases 'fl
the city courts only, not in district courts; iM-
there have been and are still, however, dependijf
in the district courts of Virgin ia alone, suits to the
number of twelve hundred, more than half o:
which are yet undetermined, and that there is o^*
669
HISTORY OF CONGRESS.
670
February, 1802.
Judiciary System.
H.orR
doubt but that other States have their suits in the
same proportion.
The Committee will at once perceive in how
very different alight this subject would have ap-
peared to the eyes of the American world, both as
to the quantity and importance of the business,
under the cognizance of the Federal Judiciary,
had a general statement, as was expected, of ail
the causes which have been brought before any
and each of the courts, been submitted to us by
the Executive.
Whilst on this subject, I beg permission, sir, to
state another piece of information which I have
received with respect to the courts of Virginia.
It is stated in the document No. 8, respecting the
circuit court which sits at Lexington, for the west-
ern district of Virginia. '' that no causes were de-
cided or depending in the circuit court of the west-
ern district of Virginia." But no reason is griyen ;
and the inference necessarily drawn from this by
the public must no doubt be, that there was no
business to be done in that court. I am credibly
informed, however, that there was neither a mar-
shal nor an attorney for that court when the judges
met, nor was there any jury summoned. The
commission, it seems, or marshal, for Mr. Grattan,
andof attorney for General Blackburn, which had
been made out, sealed, and ordered to be put into
the post office, under the old Administration, (with-
out being actually put in the mail,) were sup-
pressed upon a change taking place in the Admin-
istration ; and it was not until after the date of the
docket, that Mr. Moore and Mr. Monroe received
their commissions as marshal and attorney of that
district. I am further told, that, as soon as the
federal court met, thus organized, fifteen suits were
instituted. Now, sir, were not these facts known
to those who framed the document No. 8 1 And,
if known, ought there not, in fairness and candor,
to have been some notice taken of them in the
exact statement, instead of admitting the insinua-
tion which it conveys, as it now stands, viz : that
there was no business at all to be transacted in the
circuit court for the western district of Virginia?
[Here Mr. HuoERwas interrupted by Mr. Hol-
land, from North Carolina, who wished to know
the authority upon which he made these state-
ments. Mr. H. said, in reply, that he did not con-
ceive himself bound to give his authority ; nor
did he think proper to gratify the honorable sren-
tleman's curiosity, in this respect, unless called
upon to do so by tne House. It was sufficient that
he believed the information he had received to be
correct : he stated what he conceived to be facts
in his place. If he was incorrect, or misinformed,
it became gentlemen on the other side to deny the
facts, and point out to the Committee in what
respect the information he had giv^n was errone-
ous.]
Mr. H. then continued. I shall not, sir, encroach
further on the time and indulgence of the Com-
mittee by any other desultory observations, but
shall proceed to consider, as well as my feeble
means will permit, the merits of the main ques-
tion, and the bill now under consideration.
The bill sent down from the Senate, and now
before the Committee, involves two very distinct
questions. It is proposed, in the first place, to re-
peal the act for tne better organization of the Ju-
diciary, passed at the last session, and thereby to
revive the former Judicial establishment. Was
this the only consequence — the whole effect of the
bill — I should feel little anxiety as to the result of
the present debate. For, defective as the old sys-
tem is conceived to have been, I have no doubt
but that we might have hobbled on with it a few
years longer, until further experience should have
induced some future Congress to alter and amend
it. Certain additional judges, however, having
been required and appointed under the act of the
last session, a simple and unqualified repeal of that
act necessarily deranges and deprives them of their
offices. Hencearises another question of far greater
magnitude — in my estimation all-important, viz :
Whether this can be constitutionally done ? In
other words, whether the judges of the federal
courts are to hold their offices during good beha-
viour, as the Constitution would seem to requilre,
or at the pleasure of the other two branches of the
Legislature — the construction now contended for ?
Having been one of those who, in a former Con-
gress, contributed to bring about those alterations
m the federal courts, which it is at this time pro-
posed to do away, I may well be supposed to feel
a partiality for, and to be prejudiced in favor of,
them.^ To this partial feeling — to these preju-
dices— it is perhaps owing, Mr. Chairman, that,
notwithstanding all that torrent of abuse which
has been so liberally, but with so little foundation,
bestowed on the law of the last session ; notwith-
standing the labored and learned arguments which
I have heard and read on the subject, both within
and without these doors, I am still so much of a
heretic as to believe that the former organization
of the Federal Judiciary was defective, and that
it has been improved upon and amended by the
new system. I am still so unreasonable as to sup-
pose (judging from my own feelings and impres-
sions) that the framers of the law it is now pro-
posed to repeal might have been actuated by mo-
tives less criminal and impure than those which
have been so charitably attributed to them by their
political opponents, and that some grounds might
be adduced in favor of the provisions introduced
into it not altogether untenable. It has, however,
been echoed and re-echoed, from one end of the
continent to the other, that the present was a hasty
and novel system — totally unnecessary — suddenly
brought forward with party views — adopted for
party purposes, and hurried through the last Con-
fress by small majorities, in either branch of the
legislature. I will not undertake to say. sir, that
those who passed the law, now so mucn depre-
cated, were totally exempt from party feelings;
nor will I deny that it was adoptea at a late stage
of the last session, and carried by no very large
majority, either in the Senate or the House of
Representatives. I do contend, however, that the
measure cannot, in fairness and candor, be attrib-
uted to mere party motives, distinct from all pub-
lic advantage ; that the defects of the old system
have been for years back complained of; that
671
HISTORY OF CONaRESS.
672
H.opR.
Judiciary System.
February. 1802.
Congress have been again and again called on to
remedy them, and that the most important change —
the vital principle contained in the new system —
has been in contemplation from the very com-
mencement of the present Government, and has
been heretofore warmly advocated by gentlemen
of the very political sect which now raise such a
clamor against it. Let us test these assertions by
facts and dates.
One of the most pressing and not least import-
ant duties of the first Congress, under the present
Constitution, was to organize and establish na-
tional tribunals for administering justice, and car-
rying the laws of the Union into effect. They
took the business up, therefore, at a very early pe-
riod, and adopted a plan, of which I request to
give the outlines.
The United States were divided into thirteen
districts, to each of which a resident judge was
appointed. These districts (except those of Ken-
tuck)[ and Maine) were again classed into three
circuits — the eastern, middle, and southern. In
compliance with the express injunctions of the
Constitution, a Supreme Court was also estab-
lisbedj the members of which were composed of a
chief justice and five associate judges. The chief
justice and his associates were not only to do the
duty of judges of the Supreme Court, but alter-
nately to make the tour ot the United States; and
two of them, united with the district judee of the
district in which they met, were to hold the cir-
cuit court. North Uarolina and Rhode Island
having afterwards accepted the Federal Constitu-
tion, were erected into new districts, as were also
Vermont and Tennessee, upon their being admit-
ted into the Union as separate and distinct States.
Such, in a few words, was the system originally
adopted in the year 1789. But no sooner had it
been put into operation, than the inconveniences
and defects of it began to be perceived and felt. In
the very next year, (as early as the year 1790,) the
attention of Congress was called again to the Ju-
diciary ; and the Attorney General ^Edmund
Randolph) was desired to report, and did present
a very detailed and elaborate report, on the sub-
ject. In the course of this report^ Mr. Randolph
(vLS I shall presently show^ disapproves, in the most
unequivocal terms, of tne principle which had
been adopted of making the judges of the Supreme
Court riae the circuits, and recommends the very
change which was introduced into the law of the
last session, and is now so much reprobated by his
political friends. Nothing, however, having oeen
done in the business at that time, complaints con-
tinued to pour in from all quarters ; and a suc-
ceeding Congress found themselves (in 1799) ob-
liged to modify the law so far as to do away the
necessity of two judges in the Supreme Uourt
attending the same circuit, and to allow a circuit
court to oe held by the district and a single judge
of the Supreme Court. This modification of the
law lessened, it is true, the bodily labors of the
judges, and so far obviated the mconveniences
which had been experienced. But the remedy
was still not found equal to the disease. Did a
judge attempt to proceed by sea, from the eastern
or middle, to South Carolina^ or any other of the
Southern States, the vessel failed perhaps to sail
at the time appointed, or was delayed by contrarf
winds, and the business of the court was conse-
quently, delayed, or postponed altogether to ano-
ther term. Was a land conveyance preferred, the
rising of rivers, bad roads, bad horses— a thousand
other accidents to which travellers are necessarilj
liable — not unfrequently interrupted in the same
way the business of the courts ; and suitors, after a
great expense of time, money, and trouble, were
sent home as they came, witn their business un-
settled and undecided.
These physical impediments alone, not to speak
of the instability and want of uniformity in the
decisions and proceedings of the circuit courtS|
which were the necessary and inevitable conse-
quences of this constant change in the person of
tne judges living in different parts of the United
States, and accustomed in their several States to
such difierent and sometimes contradictory rules
and modes of transacting business ; these physical
impediments, I say alone, soon convinced all rea-
sonable men, who had anything to do with the
courts, how defective and madequate to the dae
administration of justice, must necessarily be this
system of sending the jud^^es, like so many post-
boys, whipping and spurring through mud aad
mire, from one end of this vast continent to the
other. Complaints and representations, there-
fore, were still made from various quarters, and a
revision of the Judiciary was again and again,
year after year, recommended to Congress, as well
by the Executive as the judges- themselves. I
well recollect, indeed, from the time of my return
from Europe, in the latter end of the year 179L
and long before I had it even in idea that the in-
dulgence and partiality of my felloi^-citizens
would honor me with a place on this floor — I well
recollect to have heard this plan of an itinerant
judiciary complained of and reprobated in ever)'
company, and not the least by those characters in
my own State, whose opinions and judgments I
was most accustomed to respect and revere. 1
recollect equally well, sir, that at the commence-
ment of the session, in which I was first honored
with a seat in Congress, a revision of the Judicia-
ry was recommended by the Executive, and a
committee, composed ot some of the most able
and respectable members of this House, were ap-
pointed for the purpose of taking this subject into
consideration, and did report a bill for the better
organization of the Judiciary. This bill, after
having been a number of times under considera-
tion, and undergone a variety of amendments, was
recommitted to the same committee, who. in con-
formity with the amendments adopted in the
House, gave it a new shape and reported a second
bill, of which the present law is, I believe, nearly
an exact copy.
And here, sir, permit me to observe, in contra-
diction to what has fallen from several gentlemen.
the honorable member from Virginia (Mr. Gii.cs)
in particular, and what has been so constantly
urged out of doors, that the present organization
of the Judiciary was predicated entirely on party
673
HISTORY OF CONGRESS.
674
Fbbrdaby, 1802.
Judiciary System.
H.ofR.
grouods, and with a view to the changes of party
which have since taken place; in contradiction to
this assertion, permit rae to observe that, at the
time I am now alluding to, when a revision was
recommended by the Executive, and the bill, of
which I have just spoken, was presented to the
House, the Federal sect, as it has been since term-
ed, was in the zenith of its glory, in the height of
its power. An election had lately taken place,
and a larser majoritjr was returned in favor of the
Federal Administration, than had ever before ap-
{ reared in any former Congress, nor was there the
east reason to anticipate the change of men
which has since taken place. The framers, there-
fore, of the new system, have been most errone-
ously and unjustly accused of bringing it forward
in the expectation of such a change ; the very
contrary being the fact, and the present system
baviog been presented to Congress at the very
moment when their political prospect bore the
brightest and most promising aspect. Partly ow-
ing, however, to the deference which many had
for the gentleman who was the author of the old
plan, partly owing to the difference of opinion
among the Federalists themselves, whether it was
most expedient to change this plan altogether, or
to endeavor to remedy the evils compTaincx) of,
by adding a certain number of additional judges
to the Supreme Court, and partly to the press of
business, and an inclination to give time for fur-
ther consideration, the subject was allowed to lie
over until the next session.
We had scarcely met, however, for the first
time at the present seat of Government, long be-
fore the fate of the Presidential election was
known, when the subject was again taken up, and
the House were called on to adopt the law, which
finally prevailed. After this plain tale, this sim-
ple narrative, the truth and correctness of which
no one will deny, I leave it to the Committee and
to the world to decide, with what propriety or
justice this system has heen branded and repro-
bated in such glowing colors as a hasty, novel,
and unnecessary measure, hurried through the
two Houses at tne fag-end of a dying Admmistra-
tioD, for the purpose of affording sinecure retreats
to a few favorite characters. Gentlemen may
show their ingenuity and inventive talents by
the fabrication of such tales at the time of elec-
tions, but let us hear no more of them in this
place.
There appears to me, indeed, Mr. Chairman, to
have been a radical error in the original organi-
zation of that part of the old plan which relates
to the circuit courts. In this opinion I am happy
to have it in mv power to show that I am sup-
ported by that of the gentleman already alluded
to, Mr. £dmund Randolph, a gentleman high in
the ranks, and high in the estimation of our polit-
ical opponents. In the report presented by Mr.
Randolph to Congress, in the year 1790, and
which 1 have before quoted, to prove that the
principle adopted in the present law, so far from
being a novel one, was in contemplation from the
very commencement of the Government. In
this report, Mr. Randolph expresses himself in
7th Con.— 22
the following words, which, as they come from a
quarter gentlemen cannot object to, will, I trust,
command their attention, and have due weight
with them in making up their minds on the pres-
ent question :
" A third alteration which the Attorney General can-
not fail to suggest is, that the judges of tlie Supreme
Court shall cease to be judges of the circuit courts. It
is obvious that the inferior courts should be distinct
bodies from the Supreme Court. But how far it may
confound these two species of courts to suffer the
judges of the supreme to hold seats on the circuit
bench, he declines the discussion, and circumacribes his
reflections within the pale of expediency only :
" 1. Those who pronounce the law of the land with-
out appeal, ought to be pre-eminent in most endow-
ments of the mind. Survey the functions of a judge
of the Supreme Court He must be master of the
common law in all its divisions ; a chancellor, a civil-
ian, a federal jurist, and skilled in the laws of each
State. To expect that, in future times, this assemblage
of talents will be ready without further study for the
national service, is to confide too largely in the public
fortune. Host vacancies on the bench will be supplied
by professional men, who, perhaps, have been too much
animated by the contentions of the bar deliberately to
explore this extensive range of science. In a great
measure, then, the supreme judges will form Uiem-
selves after their nomination. But what leisure remains
from their itinerant dispensation of justice 1 Sum up
all the fragments of their time, hold their fatigue at
naught, and let them bid adieu to all domestic con-
cerns, still the average term of life, already advanced,
will be too short for any important proficiency.
" 2. The detaching of the judges to different circuits
defeats the benefits of an unprejudiced consultation.
The delivery of a solemn opinion in court commits
them, and should a judgment rendered by two be erro-
neous, vnll they meet their four brethren unbiassed t
May not human nature, thus trammelled, struggle too
long against convictions 1 And how few would erect
a monument to their candor at the expense of their
reputation for firmness and discernment !
*' 3. Jealousy among the members of a court is al-
ways an evil, and its malignity would be double should
it creep into the Supreme Court, obscure the discovery
of right, and weaken the respect which the public wel-
fare seeks for its decrees. But this cannot be affirmed
to be beyond the compass of events, to men agitated by
the constant scanning of the Judicial conduct of each
other.
" 4. If this should not happen, there is fresh danger
on the other side, lest they should be restrained by del-
icacy and mutual tenderness, from probing, without
scruple, what had been done in circuit courts. A
schism of sentiment before a decision and after a free
conference is not esteemed harsh ; but it is very pain-
fiil to undertake to satisfy another that, in a public
opinion, already uttered, he has been in the wrong.
" 5. Situated as the United States are, many of the
most weighty Judiciary questions will be perfectly
novel. These must be hurried off on the circuits, where
necessary books are not to be had, or relinquished for
argument before the next set of judges, who, on their
part, may want books and a calmer season for thought.
So that a cause may be suspended until every judge
shall have heard it
" 6. The supreme judges themselves, who nde tne
circuits, will be soon graduated in the public mind in
679
HISTORY OF CONGRESS.
680
H. OP R.
Judiciary System,
Febbuary. 1802.
no means the least important, that maxim, which
goes to establish the complete separation of the
three ^reat branches of Government, the Execu-
tire, Legislative, and Judiciary. I had, till the
present day, been taught to reverence as a still
more important discovery, as the climax of im-
provement in modern jurisprudence, the principle
we now contend for, and which asserts the abso-
lute independence of the latter of the other two
branches of Government. Such is the doctrine I
have seen inculcated in all modern authors of rep-
utation, which have fallen into my hands. This
Eolitical creed I had, I thought, imbibed from the
est publications, and most approved authorities
of our own country, and from none more deci-
dedly than that so well known under the title of
^' The Federalist ;" a work attributed to the joint
labors and combined talents of three of the most
able statesmen America can boast, and avowedly
the best commentary on the Federal Constitution
which has made its appearance in print. I will
not take up the time of the Committee by refer-
ring to the different parts of this celebrated work,
which go to the support of the doctrine we advo-
cate. It is in the hands of every one, and I call
upon, I challenge gentlemen to point out the page,
the sentence, or the line, which does not incul-
cate and strongly enforce this principle of the
entire and absolute independence of the Judiciary.
There is another authority, however, of equal
emineace, though of later date and less notoriety,
to which I shall beg leave to call the attention of
the Committee.
In the former part of my argument, I had it in
my jpower to produce in support of the expediency
of the judicial system, adopted by us at the last
session, an official opinion, (given at an early pe-
riod of the present Government,) of a learned
gentleman, high in the ranks, and no less high in
the estimation of that very party which now op-
pose it with such vehemence and clamor. I am
so fortunate, sir, as to beat present able to offer to
the Committee, an authority equally high, and in
00 way less respectable, also drawn from the
State which at this time takes the lead, and from
the ranks of our political opponents, to prove the
Constitutional doctrine we are contending (or. I
have in my hands, sir, a paper containing the sen-
timents on this subject, delivered long before it
was foreseen that the present question would be
agitated on this 6oor, of one of the most eminent
law characters of the State of Virginia — the
gentleman who has been selected to inculcate the
principles of republicanism in the minds of the
youth of that country, and to teach them the gen-
uine doctrines of our State and Federal Consti-
tutions. I now allude to Judsre Tucker, professor
of law in the college of William and Mary, and
one of the judges in the Supreme Court of Vir-
ginia. This document, from which I am about
to state the opinion of the learned judge on this
Constiiuiional point, does not, it is true, come re-
commended by an official stamp, as did the report
of the Attorney General. It carries, however,
with it, every mark of authenticity, nor have I
any reason to doubt, but that it contains the gen-
uine sentiments of this celebrated professor, as
cooly and calmly made up in the retirement of his
study, and delivered by him to his pupils in his
public lectures. If I am mistaken, and the senti-
ments which have been attributed to Mr. Tucker
are not genuine, there are several gentlemen, one
in particular, not now in his seat, but in the House
I believe, (Mr. Ranoolph,) who will have it in
their power to correct me, and state the truth to
the Committee. Having premised this much,
sir, I shall now beg leave to state the opinion
and sentiments of the learned Judge in his own
words, to wit : .
" The Constitution and powers of the Jadidarj de
partment of the Federal Government have been equallj
the Bubject of applause and censure, of confidesce and
jealousy.
" The unexceptionable mode of appointing the jodges
and their Constitutional independence of every other
branch of the Government, merit an euloginm, which
all would have concurred in bestowing on thk pazt of
the Constitution of the United States, had not the pow-
ers of that department been extended to objects, which
might hazard the tranquillity of the Union in attempt-
ing to secure it."
[Mr. Tucker then proceeds to define more at
large the powers and objects here alluded to, but
concludes with the following remarks:]
" All these objections, seem, however, to be com-
pletely removed by the amendments which were re-
commended by the first Congress, and have since been
ratified."
[The Judge here again goes on to speak of the
suability of the States, through which subject,
the Constitution being in that respect also amend-
ed, it is unnecessary to follow him ; after which
he thus proceeds :]
" But whatever objections may be made to the Judi-
cial power of the Federal Government, as it relates to
the States, in other respects, as now organized and lim-
ited by the Constitution itself, by the amendments pro-
posed by Congress, and since aidopted, and by the act
above referred to, (to wit, the act limiting the jurisdio*
tion to a certain sum,) we may venture to prononnce,
that it is worthy every eulogium that ever has been
pronounced on the Judiciary of Great Britain, to which
it is in no respect inferior ; being indeed in all respects
perfectly assimilated thereto, with the addition of a
Constitutional instead of a legal independence only.
Whatever there has been said by Bacon, Montesqnieo,
Delolme, Blackstone, or any other writer, on the secu-
rity derived to the subject from the independence of ^c
Judiciary of Great Britain, will apply at least as forci-
bly to that of the United States. We may go sdil
fujlher : In England the Judiciary may be overwhelmed
by a combination between the Executive and Legkia-
ture. In America it is rendered absolutely indepen-
dent of and superior to the attempts of both to control
or crush it. First, by the tenure of office, which is during
good behaviour." Secondly, by the independence of
their salaries, which cannot be diminished. ThirdlT,
by the letter of the Constitution, which defines and
limits the powers of the several branches of Govern-
ment. Lastly, by that uncontrollable authority in mat-
ters of legislation, which is exclusively vested in this
department, and which extends to every possible caset
that can affect the life, liberty, or property of the indi-
681
HISTORY OF CONGRESS.
682
February, 1802.
Judiciary Stfstem.
H. opR.
Tidual, jifl a member of the Federal Republic, except in
the case of impeachment. The American Constitution
appears to be the first in which this absolute indepen-
dence of the Judiciary has been carried into full effect.
Dr. Rutherford considers the Judiciary as a branch of
the Executive authority, and such in strictness it may
still be considered in other countries, since its province
is to advise the Executive rather than to act indepen-
dently thereof. In this sense, the Judiciary are said to
be one of the King's councils in England — but with
U6 the Judiciary power is a distinct and independent
branch of the Government, recognised as such in ex-
press terms in our State bill of rights and constitution,
and demonstrably so too, by the Constitution of the
United States, from which it derives all power, in like
manner as the Executive and Legislative powers are
distributed to the other departments of the Govem<^
ment. The obligation which the Constitution of the
United States imposes opon the Judiciary to support
the Constitution would be nugatory, if it were depend-
ent on either of the other branches, or in any manner
subject to control by them, since such control might
operate to the destruction of the Constitution."
"And here we cannot but observe, that the Judiciary
power cannot of itself oppress the citizen. The Exe-
cutive must lend its aid in every case, where oppression
can ensue from its decisions ; but its decisions in fa-
vor of the citizen are carried into instantaneous effect,
by delivering him from the coercion of the Executive
officer, the moment that judgment of acquittal is pro-
nounced, and herein consists the excellence of our Con-
stitution, that no individual can be oppressed whilst
this branch of the Government remains uncorrupted :
it being a necessary check upon the encroachments of
power by either of the other. Thus, if the Legislature
should pass a law dangerous to the liberties of the
people, the Judiciary are to pronounce not only whether
the party accused be guilty of a violation thereof, but
whether such law be permitted by the Constitution. If,
for example, a law were passed prohihiting the free
exercise of religion, or abridging the freedom of speech,
or of the press, or the right of the people to assemble
peaceably, or to keep and bear arms, it would be the
province of the Judidary to decide that the power of
the Legislature did not extend to the making of such a
law, and consequently to acquit the prisoner from any
penalty, which might be annexed to the breach of such
an unconstitutional law.
"Should he be persecuted by the Executive, it is the
province of the Judiciary to decide, whether there be
any law that authorizes the proceedings against him,
and if there be none, to acquit him not only of the
present but of all future prosecutions for the same cause.
The power of pardon, which is vested in the Executive,
constitutes a proper check on the Judiciaiy in its turn.
On this circumstance, however, no g^eat stress can be
laid, since in criminal prosecutions the Executive is, in
the eye of the law, always plaintiff, and where the prose-
cution is actually carried on by its direction, the purity
of the Judiciary is the only security for the citizen.
The Judiciary, therefore, are that department of the
Government, to whom the protection of the rights of
the citizen is by the Constituton especially confided."
Such* sir are the sentiments of this learned and
enlightened judge; a gentleman, as I before ob-
serred, avowedly and well known to be of the
political party of the other side of the House. And
let me ask, whether it be possible to bring, on any
anbject, an authority more to the point in dispute ;
or whether Mr. Tucker could hare expressed, in
terms more forcible and less equivocal, his opinion
in favor of the doctrine we advocate, viz: that the
Judiciary is a distinct and separate branch of the,
Government, and that it is equally and absolutely
independent, as well of the Legislature as the Ex-
ecutive, or of both united. Such, too, I contend,
and firmly believe, to have been heretofore the
approved and generally received doctrine of the
American world, and such appears to me to be the
lanc(uage which the people of Americe have
spoken, as well in their State constitutions as in
our federal compact. Will you permit me, sir, to
turn to these constitutions and see what is the
language they hold on this subject.
In the bill of riffbt<t, prefixed to that of New
Hampshire, I find these words : '^ The three essen-
* tial powers of Government viz. the Executive,
* Legislative, and Judicial, ought to be kept as sep-
* arate from, and independent of each other, as the
' nature of a free ^fovernment will admit.'- In ano-
ther section, " It is the right of every citizen to be
* tried by judges as impartial as the lot ot humanity
^ will admit. It is therefore, not only the bestpol-
* icy, but for the security of the rights of the people,
^ that the judges should hold their offices so long as
* they behave well." These provisions were, f be-
lieved, borrowed from, and are to be found nearly
verbatim in the constitution of Massachusetts. In
New York, Pennsylvania, and Delaware, I find
these three branches separated with the same care,
and the judges declared to hold their offices during
good behaviour. The constitution of Maryland
expressly provides ^^ that the Executive. Legislative
' and Judicial powerTk of the government ought to be
^ forever separate and distinct from each oiher,and
' that the judges ought to hold their commissions
^ duringffood behaviour." In the constitution of the
State of Virginia, I meet with the same sentiments,
to wit: ''TheLegislative, Executive and Judiciary
^ departments shall be separate and distinct, so that
* neither exercise the powers properly belonging to
' the other;" and I find it further provided, tnat the
judges shall continue in office during good beha-
viour. But it would be superfluous to encroach
longer on the patience of the Committee, by other
examples from the State constitutions. T^i^^Y &1I
of them establish the complete separation of the
three great branches of government; all of them
inculcate, more or less strongly, the independence
of the Judiciary on the other two branches, and,
with one or two exceptions, all adopt the tenure
of good behaviour, as that, under which the judge
are to hold their offices. In this place, therefore,
it may not be amiss to say a few words with re-
spect to this tenure, and to examine how far it
extends.
To an unprejudiced mind, to a man of plain but
sound understanding, making up his opinion from
the usual meaning and common acceptation of
words, it would I think appear, that a right or
power given to be held and exercised during good
behaviour, would, and oufht to be retained by the
person, on whom it was bestowed, so long as he
continues to behave well^ nor could he forfeit it
otherwise than behaving ill, i. e. ceasing to behave
683
HISTORY OF CONGRESS.
684
H.opR.
Jxtdiciary System,
February, 1802.
well. It is now contended, however, that we
are not to judge of the force and effect of these
words, according to their plain meaning and com-
mon acceptation. We are told, that the words
*' holding during good behaviour" compose a tech-
nical phrase, and that in order to apply them cor-
rectly, we must cast our eyes across the Atlantic,
and see what is their operation in England, the
country from which we derive them.
Mr. Chairman, it has not been my good fortune
to be initiated in the mysteries of the law. I am
no professional man ; nothing more or less than a
plam farmer, or to use a more appropriate term
of my native State, a plain and, I trust, honest
f^lanter. I cannot hope, therefore, to throw much
iffht on a legal question; nor do I feel myself
adequate to the discussion of legal terms and nice-
ties. I will, nevertheless, claim the indulgence of
the Committee, while I make a few observations
on the subject, even in this point of view.
In the earlier stages of the English, as well as
many other European Governments, the King sat
and administered justice in his own immediate
person. This state of things, however, neither
could nor did last for any very considerable length
of time. It was soon found expedient to dispense
with the personal attendance of the Prince,^and
the administration of justice devolved on certain
substitutes, who were still supposed to represent
his person, acted in his name, and held their offices
at his pleasure. As the darkness and ignorance of
the middle ages were dispersed, and the inhabi-
tants of Europe became more enlightened, the
feudal chiefs in the first instance, and afterwards
the people, generally, increased in power, and pro-
cured to themselves certain rights and charters.
By degrees they came also to participate in the
legislation and government of the country. But
the laws were still interpreted, and justice admin-
istered, by the creatures of the Crown ; and expe-
rience sufficiently proved, that while the judges
were left at the mercy of the Prince, they would
invent modes and find evasions, by means of which
the will of him on whom they depended might be
carried into execution. The necessity, therefore,
of establishing the independence of the judges
became evident, and the people of England, after
a long struggle, succeeded in carrying this point.
The judges, mstead of holding their commissions
durante bene placito, during pleasure, as hereto-
fore, received them under a new tenure, quamdiu
se bene gesserint, during good behaviour; nor
could the King any longer remove them, except
on an address from both Houses of Parliament.
This was all that was necessary, all that was re-
quired, all that could be done; for, as the two
Houses of Parliament and (he Crown united, pos-
sess what has been styled political omnipotence,
as they act not only in the confined sphere of
agents, bound down by certain fixed rules and
a written constitution, but are supposed also to
represent the nation in its original capacity, there
is nothing so sncred under this system of govern-
ment which they ennnot and do not control and
alter at their pleasure and discretion. The Judi-
ciary continues, nevertheless, in that country, to
be a subordinate department; the judges continue
still to hold of, and from the Crown, to administer
justice in its name, and are supposed to be an em-
anation from the regal power. The courts are
still called the King's courts; the judges, the
King's judges. This being the case, as respects
the King's power and prerogatives in England,
gentlemen now bring forward the monstrous doc-
trine, that the Executive stands precisely in the
place of the Crown, and imply that the Judiciary
are placed in precisely the same relative situation
with respect to him as that of England is to the
Crown. Is this really the case. Mr. Chairman 1
Is the Judiciary of the United States really subor-
dinate to the Executive? Do the judges indeed
bold, as the gentleman from Virginia (Mr. Giles}
tells us, of and from the President, that very Presi-
dent, at whose trial, in case of impeachment, one
of them is to preside ; do they indeed administer
justice in his name? Does their power emanate
from him? Are the Federal courts the courts of
the President, the Federal judges his judges ? No.
sir, the Federal courts are the courts of the United
States. Justice is administered in the name of
the United States. The judges are only known
as judges of the United States. They hold their
commissions of and from, and act under the ao-
thority of the United Slates. What, then, is the
fair inference? Against what power under our
Constitution was the tenure of good behaviour
intended to operate? I say, sir, the fair and hon-
est inference is, that this tenure was intended as a
limif^tion and restraint against the United States
in its corporate capacity; that is. against the Guv-
ernment of the United States, which in fact and
in truth, are placed in the same relative situation
with respect to the Judiciary, in which the Crown
stands in that country of which we have been
speaki^ng. The native citizens. of America. Mr.
Chairman, are a plain but shrewd people, of sound
and distinguishing minds, and possessed of their
full share of common sense. They are not apt to
do things idly, to adopt measures which mean
nothing, and are of no avail. It, therefore, is pay-
ing them but a poor compliment, to suppose that
when they adopted this tenure they intended it to
operate only against that branch of the Govern-
ment which did not possess the powers and pre-
rogatives, against which the checK was orijgrioally
aimed and directed in the country from whence
we are supposed to borrow it. They looked not,
sir, to the sound, but the substance; they regarded
not the name or the title, but the thmg itself;
they meant not to combat a shadow, a nonentity,
but to limit and restrain the power itself, in vrhat-
ever branch it might appear to have been depos-
ited under the Constitution, and which, possessing
or assuming the prerogative of the British CrowD,
might be disposed to make the Judiciary a subor-
dinate department of the Government, or to affect
the independence of the judges. Therefore, what-
ever branch of the Government assumes this
power, from whatever quarter the attempt is made
to render the Judiciary subordinate to its will and
pleasure, and to infringe the independence of the
judges, this Constitutional barrier stares theni in
685
HISTORY OF CONGRESS.
686
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Judiciary System,
H. OF R.
the face, and upon a fair and honest construction
of the tenure under which the people have willed
that the Federal judges should hold their com-
missions, they can only forfeit them, (while the
Constitution lasts, or until the people think proper
to alter it) they can only forfeit them by ceasing
to behave well; they can only be deprived of
them by impeachment.
That this is the construction heretofore given
to the tenure of good behaviour in the American
world may, I think, also be proved by a further
reference to the State constitutions. In those of
New Hampshire and New York, it is expressly
declared, that the judges, who hold their offices
during good behaviour, shall not continue in them
after reaching a specified age — sixty or seventy
years — and in that of Massachusetts^ that the
Governor, with the consent of Council, may re-
move the judges, holding under the same tenure,
upon the address of both Houses. Here I say, in
the first instance, the exception proves the rule.
If the judges were not to hold their offices (bui
for this exception) during their lives and good
behaviour; to what end, with what possible view,
was the exception as to age introduced? In the
latter case, if the other two branches have, (as is
contended) in the nature of things, and of course,
the right of deranging and the power of depriving
the judges of their offices, why was the proviso
adopted ? What necessity could there have been
to grant this power expressly to them in the Con-
stitution ? Is it not fair and correct to imply from
this proviso, this express grant; that, in tne opin-
ion of the framers of that Constitution, the Legis-
lature would not otherwise have possessed the
power therein ffiven? Again; in the constitu-
tions of Pennsylvania, Delaware, dbc, it is provi-
ded, that the judges shall hold their offices during
good behaviour, (subject however to impeach-
ment;) but for any reasonable cause, which shall
DOt be a sufficient ground of impeachment, the
Governor, at his discretion, may remove any of
them on the address of two thirds of each branch
in Pennsylvania, and in Delaware, on the address
of two thirds of all the members of each branch
of the Legislature. Now, sir, does not the major
include the minor? If then, it was contemplated
by those who framed these constitutions, that a
simple majority of the two Houses could pass a
law, which would, to all intents and purposes, de-
range and remove the judges from office, why in
the name of common sense require, as we have
just shown is done in the constitutions of Penn-
sylvania and Delaware, an union of two thirds of
all the members of botn branches of the Legisla-
ture to effect the same thing, viz : the removal of
the judges?
Far, however, as these examples go to show
the effect which this tenure was supposed to have
in restraining the power, as well of the Legislature
as the Executive, the point is still more triumph-
antly and unanswerably proved in the case of
those Slates in whose constitutions no specific
mode is provided of removing? the judge, except
by impeachment, and in which the Executive
neither exercises, nor has the power of removing
an incumbent from office. Such is, for example,
the case in North Carolina, and in the State I
have the honor immediately to represent. Here
the judges are chosen by joint ballot of both
Houses, and hold their offices during good beha-
viour. The Executive however neither does nor
can remove any civil officer from office who holds
a commission at pleasure. Did the judges, there-
fore, hold under this inferior tenure, they would
be still out of his reach, beyond his authority and
control, )^et the Constitution declares, "they shall)
hold their commissions during good behaviour.'^
Why, then, is this particular tenure secured to-
them by the Constitution? In whose hands i»
the power placed against which it is intended to
operate and secure them ? Certainly not in the
hands of the Executive, for we have just seen
that he cannot remove from office even in cases
where the commissions run ** during pleasure.'' If,
therefore, anything is meant by this provision in
the constitutions of these States, the intention
and object must have been thereby to limit and
restrain the power of the Legislature; and as I
have never yet heard it contended that a public
officer, holding during good behaviour, could be
turned out of office by a simple vote or resolution
of the two Houses, or by an express act passed
for that purpose, it follows, that this tenure was
adopted to prevent them from doing the same
thing by a side wind, by deranging the individual
thus secured, and talcing his office from him.
From this hasty review of the State constitu-
tions it would appear, that in the general received
opinion of the American people, the tenure of
good behaviour, where no express provisions to
the contrary were introduced in their State con-
stitutions, went to secure the independence of the
judges and their continuance (the very term made
use of in the constitntion of Virginia) in office,
equally against the attempts and encroachments
of the Legislature and Executive.
The wise men who framed our Federal com-
pact were perfectly aware of this. The State
constitutions were all before them. They were
well acquainted with the sentiments and opinions
of the people in every part of the continent. They
deemed it. however, most expedient to omit the
various exceptions, contained in the several State
constitutions; and in establishing the Federal Ju-
diciary, they carefully provided that the judges,
both of the supreme and inferior courts, shoula
hold their office under the pure and simple tenure
of good behaviour^ subjeet to a possibility of re-
moval from office m no other way under tne Con-
stitution, save only by impeachment. So far were
they, indeed, from intending that a bare majority
of the two branches of the Legislature, uniting
with the Executive, should have the important
and effectual power of deranging and getting rid
of the jud&:es by putting down their offices, that
they would not even trust them with the much
inferior power of reducing their salaries, but ex-
pressly provide that the salaries of the judges
shoula not be diminished during their continu-
ance in office. In the only instance in which
they grant the power of removal, viz: by im-
687
HISTORY OF CONGRESS.
688
H. OP R.
Judiciary System.
Fbbroart. 1802.
peachment. they avoid giving the Executive any
agency whatever in the business; they suspend
all the Legislative functions of the Senate and
House of Representatives, and introduce them
Entirely in a new character, by making of the lat-
ter a body of accusers, and converting the Senate
into a court of justice. They go further, and
from abundant caution provide at the same time
in cases of impeachment, that no person shall be
convicted without the concurrence of two-thirds
of the members of the Senate, before whom he is
impeached.
But granting for a moment that the tenure of
good behaviour was intended more immediately
as a check against the Executive; whence, I pray
you, does the Legislature obtain the right of dis-
regarding this check, and removing the judges in
spite of this express limitation of any and every
such power 7 Will any one contend that they
can exercise a power not given them by the Con-
stitution ? If not, I repeat the request of the
thember from Pennsylvania, (Mr. Hemphill,) that
gentlemen will turn to the j)age and point their
finger to the clause which gives even the sem-
blance of any such power to the Legislature
alone, or united with the Executive. And if, as
is the fact, no such power is given in the Consti-
tution, I ask with the same gentleman, how this
Committee can possibly get over the provisions
contained in the tenth amendment to the Consti-
tution ? viz : " The powers not delegated to the
* United States by the Constitution, nor prohibi-
* ted by it to "the States, are reserved to the States
* respectively or to the people."
In the face of all this, and contrary to the prac-
tice which has heretofore invariably prevailed as
Well under the State governments, as that of the
Union at large, gentlemen now tell us that the
members of this separate, distinct, and co-ordi-
nate branch, are left at the mercy of every politi-
cal gale that blows, and subject to the whim and
caprice of every party, which may chance from
day to day predominate in the other two branches
of the Government.
The error of this novel doctrine seems to me,
sir, to arise from an impression on the minds of
gentlemen which lead them to suppose, that as
the Executive and Legislative brandies are elect-
ed by, and therefore presumed to be the more im-
mediate representatives of the people, they are in
fact one and the same with the people, and pos-
sess all the powers of the great body of the nation
in its original capacity. They forget in how nar-
row and limited a sphere they are delegated to
act, assimilate themselves to the Parliament of
Great Britain, and would fain assume the political
omnipotence, which is supposed to vest in that
body ; or to express my idea still more clearly,
and in American language, they regard them-
selves, not merely as sitting here in a legislative
capacity under a written constitution, but as pos-
sessed of the much higher and more important
powers of a convention. But will any one at
this time, whatever may be done hereafter, come
boldly forward and openly avow this doctrine?
No, sir, the fact is far otherwise. We are nothing
more or less than the mere agents of the people,
empowered to transact the current business of
the day ; honored, it is true, by the confidence an<i
trust tney place in us, but bound down by wriitec
rules or instructions, and under an obligation tc
move within a confined sphere, and within nar-
row and specified limits. The Constitution is the
power of attorney under which we act, and I
might as well be told that an agent empowered to
dispose of my personal, had oT course a right to
do the same with my real property ; as that we
are to judge of the expediency and propriety of
the quanltim of poWer vested in this or that branch
of the Government by the Constitution, and to
make its express provisions bend to what we deem
right, and what comports best with our own im-
mediate purposes and wishes. When, therefore,
the Constitution says, article third, section one,
" The judicial power shall be vested in a Supreme
^ Court, and in such other inferior courts as the
^ Congress may from time to time ordain and es-
' tablish," I contend such must necessarily be ike
organization of the Federal Judiciary. When it
goes on and provides in the subsequent part of
the same section, that the judges both of theso-
preme and inferior courts shall hold their offices
during good behaviour, I boldly aflirm, that such
only can be the tenure under which they can hold
their offices ; nor have the Government any other
means of getting rid of them than that pointed
out by the fourth section, second article, viz:
impeachment. The Legislature and Executife.
whether acting separately or in unison with each
other, have no more Constitutional right to evade
or contravene the fair and honest meaning of the
express tenure, i. e. good behaviour, under which
the judges hold, and to derange or displace a
judge, either of the supreme or inferior courts,
whilst he continues to behave well, than they
have to diminish the number of years, during
which the Executive now remains in office, or to
increase that for which the members of the Sen-
ate and House of Representatives are at present
elected.
I am not only, however, Mr. Chairman, strong-
ly impressed with the conviction that the framen
of the Federal Constitution intended to secure
the absolute independence of the Judiciary, as
well against the power and control of the L^e^
lature as the Executive, but humbly conceive that
they have wisely done so. We have, indeed,
heard a great deal of rhodomontade about the
dangers which were to be apprehended from an
independent Judiciary. We are threatened with
an army of judges, and some gentlemen, whom
neither the roar of cannon, nor glistening of steel
could ever appal, begin already to tremble at the
idea of facing a few decrepid old men seated on
the bench of justice. But this is the first time,
Mr. Chairman, I must confess, that 1 have ever
heard or imagined the independence and conse-
quent impartiality of the judge could give alarm
to honest men, strong in the rectitude of their in-
tentions and conduct. To the guilty, indeed, I
had been taught to believe such a tribunal, before
which party influence and the power of friends
689
HISTORY OF CONGEESS.
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February, 1802.
Judiciary System.
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could afford no protection, was truly awful. The
conscious culprit might well tremble — miffht well
dread to appear before a tribunal of this kiod.
But reverse the position ; destroy the independ-
ence of the Judiciary ; let the judge depend on
the nod of the Legislature, or rather of the parly
which may for the moment prevail in the Les^is-
lature, and of what avail will innocence itself be
to the accused? Can his innocence protect him
against the power of his oppressor, armed with
the whole force of the Government, and on a
compliance with whose will the judge knows his
subsistence to depend? Alas ! sir, they are little
acquainted with human nature, who suppose that
in such a state of things innocence will avail
aught.
Those who have power will use it — will com-
mand. Those who are subject to and feel the
effects of that power, must obey and will forget
right. From an ex post facto law, from a suspen-
sion of the Jiabeas corpus in time of peace, from
a bill of attainder, or from any other act of vio-
lence, however unconstitutional, on the part of
the Executive and Legislature, where are we to
look up for relief? To what tribunal are we to
apply for the protection of our persons and our
rights against the predominant faction, or leaders
of a faction — against the rage and violence of
party zeal and party animosity — if this tribunal,
instead of being a barrier, behind which the weak
may take shelter, is to become the tool of those in
power, and to be made use of as the instrument
of their persecution and oppression? In contests
between individuals of different States, between
the different States themselves, what reliance will
be placed in the Federal courts, when deprived of
their Constitutional independence ? What con-
fidence could one of the smaller States — Dela-
ware, for example, placed as she now is, in the
minority, and exposed to a contest of rights with
the great and powerful State of Virginia, possess-
ed of the preponderating influence she avowedly
has at this moment, in the two branches of the
Legislature, and one of her immediate citizens
armed with the whole power and influence of the
Executive department — what confidence could
the State of Delaware place in the impartiality
and justice of the national tribunals, if tnose who
are to preside in them and decide on their con-
flicting claims, are to be dependent on the Legis-
lature and Executive, and of course on the nod
and pleasure of Virginia, the most powerful of the
parties concerned ? What, sir, must necessarily
be the consequence of such a state of things?
Must it not, will it not, give rise to jealousies, and
excite the fears and apprehensions of the least
powerful Slates? Will they not be seeking out
for some other protection, some greater security
for their rights j and must not the want of an in-
dependent tribunal, in which all parties might
equally confide, drive the weaker into compacts
for their mutual protection against the encroach-
ments of the larger and most powerful States?
The next step is an appeal to arms, and a civil
war follows. Such must be the natural course of
things. Such has been the invariable effect pro*
duced by the same causes among other nations.
And I hesitate not in saying that, between an in-
dependent Judiciary, constituting a tribunal which
can control the unconstitutional attempts of the
other two branches of the Government, which
dares, without dread or fear, to deal out justice,
with an impartial hand, between the weak and
the stroncr, the great and the small ; between such
a tribunal and the bayonet there remains no re-
source or alternative.
The great object of Government, Mr. Chair-
man, is to provide against danger from abroad,
and to insure protection at home. For these pur-
poses adequate powers must be lodc^ed somewhere.
Place them in what hands you please, dispose of
them as you will, still you are exposed to the
risk of their being abused, and converted to im-
proper ends. In those governments which ap-
proach nearest to monarchy, the powers of the Ex*
ecutive will, of course, preponderate. In propor-
tion, on the other hand, as a e^overnment verges
more or less to democracy, will the powers of the
fovernment vest more or less in the popular
ranches of it. To showthat these branchesare lia-
ble to error, and will abuse the power entrusted to
them, as well as the Executive, cannot be at this
day necessary. The experience of every gentle-
man who hears me, must convince him of this
fact. Every page of history equally corroborates
it, and proves beyond all doubt that, in the most
popular governments, power is at times abused,
and injustice and tyranny carried to the utmost
unjustifiable lengths. The American people, from
one end of the continent to the other, are con-
vinced of these truths. Hence the care and anx-
iety with which they have separated and bal-
anced the powers vested in different branches of
their State governments. Hence the limitations
and checks they have introduced with so much
caution in their State systems. The sages, who
were drawn together from every part of the Union,
and who framed the Federal Constitution, knew
equally well that the powers necessary to provide
for the common defence against foreign invasion,
no less than to insure domestic tranquillity, were
liable to abuse, might be converted to improper
uses, in whatever hands they were placed. These
wise men, therefore, endeavored to steer a mid-
dle course, and to divide and balance in various
ways the power given for these purpose*. They
deposited such power with the Executive as was
sufficient to carry the laws into execution, and to
give energy to the national force in times of dan-
ger. They gave him a temporary and limited
control over the proceedings of the Legislature,
as well to protect his own right as to check, in
some degree, that fervent zeal and headlong im-
f)etus to which all numerous bodies are more or
ess subject.
With the same view of insuring greater mod-
eration and reflection, and as a mutual check on
each other, they divided the Legislature into two
distinct branches. Still the history of other na-
tions, the experience of past ages, taught them
that all this was not sufficient. They foresaw that
popular branches by uniting might overpower the
691
HISTORY .OF CONGRESS.
692
H. OP R.
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Februarf, 1802.
Executive ; or the Executive might, by corrup-
tion, induce them to favor his views ; or, finally,
from whatever cause, these two branches might
come to an understanding and unite in a common
interest. They had seen examples of all this in
the very country from which their forefathers
had emigrated ; and they well knew that, if these
two branches were by any means induced to unite
in a common cause, they would construe the Con-
stitution as might best suit their purposes, and all
power would of course be in their hands. Civil
wars and dissensions, they were perfectly aware
would, as had been heretofore invariably the case
in other countries, necessarily follow; and this
happy country must, sooner or later, swell the
long catalogue of Republics which have fallen
victims to the same or similar causes, and now
exist but in name. To obviate this fatal catas-
trophe, one only alternative, hitherto unknown or
untried by other nations, presented itself to them.
This was to establish a third co-ordinate and
equal branch in the Grovernment — an independ-
ent Judiciary, which, without interfering in the
Eeculiar duties of either of the other two, without
aving anything to do either in making the laws,
or when made, in calling forth the force necessa-
ry to carry them into execution^ should serve as a
protecting shield, as well to individual citizens as
the States themselves, against the encroachinent.«
and attacks of either or both these branches, act-
ing either separately or in union; should keep
each of them in its proper sphere^ and check the
career of one or both, when steppmg beyond the
limits which had been assigned them ; when
trampling on the Constitution, under which the
people had authorized them to act, they under-
took to extend their powers at pleasure, and to
make their will, instead of the written will of the
people, the criterion by which their powers were
to be judged. These, sir, were the august func-
tions, the all-important purposes, for which the
Federal Judiciary were originally intended. And
can it be said, is it reasonable, that the judges,
who were destined to check the assumntion of
powers not given, ought or could have been in-
tended to have been left in the power and at the
mercy of those very branches whom they are to
check and control?
Was this the intention of the Constitution 7
Was tli^re no other object contemplated in the
establishment of the Judiciary, than to have such
courts, as might be necessary to dispatch the cur-
rent business of the day ? It would nave been suf-
ficient to have given Congress the general power
of establishing such courts, as might from time to
time be found necessary, and to have simply in-
cluded it in the enumeration of other powers dele-
fated to Confirress in the eighth section of the
rst article. But what have the framers of the
Constitution done in this respect; have they not
established the Judiciary in as pointed and direct
terms ; have they not made it as necessary and dis-
tinct a branch of the Government, as either the
Executive or Legislature? Turn to the Consti-
tution and you will find, sir, that the same formali-
ties, the same divisions, the very same expressions
are made use of in establishing the one, as the
other of these three great departments of the Gov-
ernment.
The first article declares that all Legislative
powers herein granted shall be vested in a Con-
gress of the United States, which shall consist of
a Senate and House of Representatives. The
second, in the same way, that the Executive shall
be vested in a President of the United States of
America. And what says the third article?
Why in the very same words, tnu/a/f> jntUandii,
that the judicial power of the United States shall
be vested in one Supreme Court and such other
inferior courts as the Congress may from time to
time ordain and establish. Again, article first:
^' The House of Representatives shall be composed
of members chosen every second year ; the Senate
of the United States of two Senators from each
State, chosen for six years." Article second: ''The
President shall hold his oflSce during the term of
four years." Article the third: "The judges,
both of the supreme and inferior courts, shall
hold their offices, during good behaviour." Thos
sir, in vain do I con over each article and section
of the Constitution. I see not the smallest differ-
ence in the divisions, terms, or expressions, made
use of in the establishment of these three depart-
ments. I cannot find a word or syllable which
goes to establish and declare the Judiciary of the
United States to be a subordinate or dependent
department, and not a co-ordinate and indepen-
dent branch of Government,
And as to the danger to be apprehended from an
independent Judiciary ; what can it be ? Whence
can it arise ? The number of judges of the United
States, must necessarily be curtailed; increase
them, even as far as the imagination of any &ren-
tleman will carry him, still they cannot act efiect-
ually without the aid of the Executive and Legis-
lature. They are besides scattered over an im-
mense continent; never assembled together in a
body ; and four-fifths of them will in all human
probability, remain utter strangers to each other,
except by ^^me and reputation. They neither
wield the sword, nor have the purse-strings at
their command. They cannot move until the other
two branches have acted. Thef can neither say
what laws are to be made, or direct what mea-
sures must be pursued. Their whole power con-
sists in assisting to carry the laws and measures,
adopted by the other two branches, into operation;
in dealing out justice, protecting tne weak against
the strong, and restraining and checking the un-
constitutional attempts of the Government. Their
only shield is the Constitution ; their only force, ar-
gument, They not only are without the means of
acting offensively, but tne very situation in which
they are placed, at the moment I am speaking*
shows how une(]ual they act,even to the defence of
their Constitutional rights; and proves but too
clearly the justice and truth of an observation
made oy one of the most eminent writers of mod-
ern times. " Of the three branchesof Government,'
says President Montesquieu, speaking of the fix-
ecutive, Legislative, and Judiciary, '^ the latter is,
in some measure, next to nothing." By ^what
693
HISTORY OF CONGRESS.
694
February, 1802.
Judiciary System.
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means indeed are the judges to obtain an undue
and ovefweenin^ influence 1 From what source
are they to acquire to themselves a dangerous and
preponderating control over the other two branch-
es ? They have nothing to give, no inducement of
power or profits to hold out to their friends and sup-
porters. Their age, their habits of life, decorum,
every circumstance, combines to deprive them ot
the use of those means which lead to popularity;
and popularity, in a Government like ours, is real
strength. In a contest, therefore, with the other
two branches, the Judiciary has nothing but the
sober reason, and good sense of the community
to depend upon for its support. How unequal then
must be the contest ? How few are the chances of
defending with success their rights and Consti-
tutional power on the part of the Judiciary ! For
we all know but too well, how frequently the
phrenzy of the moment, the rage of the day. clouds
and overwhelms the sober reason and good sense
of mankind.
These few observations, Mr. Chairman, I have
deemed it my duty to offer to the Committee.
They have been dictated however, I will honestly
and candidly confess, rather in the hope that they
may serve as a lustification of my conduct and
vote on this awful occasion, to those who have done
me the honor of sending me hei^, than from the
most distant expectation that they could have the
least effect on this floor. No, sir, all my hopes of
stopping the further progress of this, in my num-
ble opinion, unconstitutional and baneful measure
through this House, have loqg since vanished.
The bill on your table, I foresee, will pass. The
dyke is broken down — the torrent must have its
way — and God grant that its ravages in that fer-
tile region through which it has to flow, may be
confined within a narrow and circumscribed chan-
nel. In one point, however, I differ with those
who think with me on the present question. I am
perhaps of a more sanguine complexion than most
of them. I do not, therefore, despair of the Re-
public. I have the most perfect confidence in the
good sense and wisdom of the American people.
I believe they are strongly impressed with the ne-
cessity of having an independent and impartial
Judiciary, and will not allow myself to doubt,
but that they will at no distant period restore to
this branch of the Government its wonted splen-
dor and independence, and close the wound which
we are about at this time to inflict on the Constitu-
tion. Under these impressions, and in this hope,
I shall patiently, though with pain and anguish
(I confess) submit to the wili of the majority,
whatever it ultimately may be, on the subject now
under consideration.
Mr. Smith, of Vermont.— Mr. Chairman, I rise
for the purpose of offering you my opinion upon
the motion now under consideration. I do it with
^reat diffidence, because I am fully apprized of the
importance of the question, and am conscious it
merits an investigation far beyond anything? I
am able to give it. My diffidence is still further
increased, from the recollection that this subject
has already been discussed with the most profound
ability, and the most moving eloquence. Little
now can remain to be said ; if, however. I should
contribute in any small degree to elucidate the sub-
ject, I am satis6ed, from the patience the Commit-
tee have manifested during this debate, the attempt
I am about to make will be acceptable. I take
it Mr. Chairman, the motion is, to strike out the
first section of the bill. I presume the honorable
mover made it from a conviction that the bill was
inexpedient, or unconstitutional, or both. What-
ever reasons he miffht have, it is incumbent on
those who advocate the passage of the bill, to show,
that the enacting this bill into a law, is both Con-
stitutional and expedient. I shall first attend to
the question relating to the constitutionality. The
first point to be established under this bead is,
" the general power of Congress to repeal a law con-
stituting tribunals inferior to the Supreme Court."
In the eighth section of the first article of the Con-
stitution, the poivers of Congress are enumerated ;
it says, tne Congress shall have power to lay and
collect taxes, to borrow money, to reeulate com-
merce, to establish a uniform rule of naturaliza-
tion, to coin money, to establish post offices and
post roads, and among many other powers, " to
constitute tribunals inferior to the Supreme Court."
Tlie Congress shall have power. The Congress
here spoken of, by way of eminence, unuuestion-
ably means, not the Senate and House of Repre-
sentatives which may be composed of members
first chosen under the Constitution, but every suc-
ceeding Senate and House of Representatives
composed as aforesaid ; as if ir had said, the Con-
gress for the time being shall have power. The
words "shall have power" evidently imply, that
Congress may do, or omit to do, or undo, any
thing which relates to the subjects here commit-
ed to their charge, as sound discretion shall dic-
tate, and the public good require.
If Congress will that tribunals inferior to the
Supreme Court shall exist, they express that will
in lorms prescribed by law, and thev are constitu-
ted : if they will them not to exist, the same forms
are pursued, and their existence ceases. It is to
be observed, that the power of Congress in relation
to their inferior tribunals, is spoken of in the same
general terms in which all the other subjects to
which their powers extend, are mentioned. It
is incumbent on gentlemen, who deny the power
of Congre>s to pass this bill, to show us in which
part of the Constitution this power is taken away.
They direct us to the third article, first section, of the
Constitution, where it says, ^^ the judges, both of the
Supreme and inferior courts, shall hold their offices
during good behaviour." Words spoken or writ-
ten, are to be understood as relating to a subject
or subjects immediately under consideration, and
not to subjects which at the time are not present-
ed to the mind of the speaker or writer. It ought
here to be noticed, that the advocates of the Bill
contend that these words apply to the Executive,
and not to the Legislative authority. To ascer-
tain more clearly the extent of the meaning which
the framers of the Constitution meant should be
affixed to this sentence, on which the gentlemen
opposed to the bill so much rely, it will be partic-
ularly useful to attend to the orderly arrangement
695
HISTORY OF CONGRESS.
696
H. OP R.
Jvdiciary System.
February. 1802.
of the subjects treated od in the ConstitutioD : per-
haps a more correct and uniform arrangement nev-
er took place in any composition. It begins by a
division of the powers of Government into three
departments ; the Legislative, the Executive, and
Judiciary. These separate departments of the
Government are considered separately, under three
distinct articles. The first article speaks of the Le-
gislative power; it declares that '^all Legislative
'powers herein granted shall be vested in a Con-
' gress of the United States, which shall consist
* of a Senate and House of Representatives." It
first speaks of the investment of Legislative pow-
er; it then tells how the bodies who are to possess
this power are to be composed ; it th^n declares
how they shall be inducted into office, or in other
words, of their election, and the tenure of their
offices in virtue of such election. The Senators
shall be elected for six years, the RepreseDtatives
for two years. It then proceeds to point out the
qualifications of the electors and the elected, and
some further regulations relative to the govern-
ment of their own bodies respectively ; and last-
ly speaks of their powers and duties. Here the
second article is introduced: it begins with de-
claring, that '* the Executive power shall be vest-
' ed in a President of the United States of Ameri-
' ca ; he shall hold his office durinis^ the term of
* four years, and, together with the Vice-President,
' chosen for the same term." It then speaks of his
induction into office, or the manner of election,
and the qualifications of electors and elected, and
lastly points out his powers and duties. Now
comes the third article, which treats of the judica-
tive puwers ; it begins as before, bv declaring ttmt
" the judicial power of the United States shall be
' vested in one Supreme Court, and in such inferior
^ courts as the Congress may, from time to time, or-
' dain and establish." Here is introduced the clause,
or sentence, on which the gentlemen opposed to
the bill on your table so vehemently- insist. It is
in these words ; " the judges, both of the supreme
and inferior courts, shall hold their offices during
good behaviour." I am here constrained to notice,
that the words " appointed by the President," are
omitted in this sentence. It will probably be ask-
ed, why was it so? It is answered, on the page
preceding, speaking of the powers of the President,
It says, ^' he shall appoint ambassadors, other pub-
^ lie ministers and consuls, judges of the Supreme
' Court, and all other officers of the United States,
* whose appointments are not herein otherwise pro-
* vided for, and which shall be established by law."
To have repeated in this sentence the words which
were to authorize the President to appoint judges,
would have been more than unnecessary ; it would
have been tautology.
It follows, then^ that the sentence of which we
have been speaking should be understood thus:
^* the judges both of the Supreme and inferior
< courts shall be appointed by the President, and
^ shall hold their offices during good behaviour."
The subject which presented itself to the consid-
eration of the framers of the Constitution, evi-
denced by the words themselves, and the analogy
"T^hich the article bears to both the preceding arti-
cles, was, first, the power of the President to ap>
point the judges ; second, the tenure of their offi-
ces in relation to such appointment. This clause
in the Constitution establishes, in the first place,
that the President shall appointthe judge, and sot
the Legislature, which otherwise might have been
doubtful ; secondly, the judges should hold their
offices, not at the will of the President, oor for any
limited period, at the expiration of which ibe
President mi^bt again exercise his will upon the
tenure of their offices ; but it should, after the ap-
pointment is made, be held independent of any
exercise of his will thereafter. It shoald be dur-
ing good behaviour. Every appointment of the
Executive for an indefinite period, is an appoint-
ment at will. The nature of the power implia
it. A power to be exercised at will, without any
limitation upon it, must at all times necessarily
depend upon the exercise of that will. There cao
be no nece.ssity for a chain of reasoning upon this
point. It has been the universal practice of this
Government, and I believe of every other, wheo
the Executive has had the power of appoiotments.
that a person receiving an appointment, where
neither the Constitution or laws have defined the
period for which he is to hold it, it is considered
as held at the will of the Executive. In the Gov-
ernment from which we derive much of oar
knowledge of jurisprudence, it had long been
deemed an evil that the judges held their offices
at the pleasure of the Crown. This tenure has
finally been changed into a tenure for good beha-
viour, defeasible, however, upon the applicatitoi
of both Houses of Parliament. The framers of
our Constitution most unquestionably saw good
and sufficient reasons for giving the same inde-
pendence to our judges, and the words which they
have introduced into the Constitution for this pur-
pose, are strictly applicable to that subject ; not a
word could be added or taken away, without in-
jury to their meaning. It should seem, then, that
the judges are independent of Executive will, sub-
ject, however, to the ordinary power of the Le-
gislature, in constituting, altering, and modifying
the courts, in such manner as, m their opioioo.
the public interest may require. If this clause of
the Constitution, about which so much has beea
said, was not intended by the framers of the Con-
stitution to be understood in subordination to Le-
gislative power, and exclusive of it, they shoald
have inserted some words which would plainly
inhibit Congress from altering or modifying the
courts; thev ought to have said, not only they
shall hold tneir offices, but their offices shall not
be abolished during good behaviour; their offices
are the work of the Legislature, they have iheii
existence in Legislative will ; the power of the
President to appoint, and the tenure of their offi-
ces in virtue of that appointment, are all suspend*
ed on the existing pleasure of Congress, expressed
in your law ; if that is withdrawn, the whole fab-
ric tumbles into ruin. Gentlemen have said much
about tbe co-ordinate powers of the GovemmenL
and that the Executive and Judiciary are co-or-
dinate with the Legislature. So far as they have
a Constitutional existence, independent of Legis-
697
HISTORY OF CONGRESS-
698
Februart, 1802.
Judiciary System,
H. OP R.
lative will, they are so, but when their existence
or power depends on the exercise of that will,
they are dependent. This is one of those cases ;
gentlemen are endeavoring to take from the Legis-
lature their power, by inference and implication.
They reason thus: ** the judges shall hold their
offices during good behaviour." If you repeal the
law. they cannot hold their offices; therefore you
cannot repeal the law. Will not this reasoning
apply to every law constituting an office held at
the will of the President ? Your supervisors hold
their offices at the will of the President ; if you
repeal the law constituting these officers, you
determine the President's will, and deprive them
of their offices; therefore you cannot repeal the
law.
'* The President shall be Commander-in-Chief
of the Army." If you repeal the law organizinff
an army, he will not be the Commander-in-Chier;
therefore you cannot repeal the law organizing
the army, and so on of the navy and militia. The
only explanation which can be ^iven for this ap-
parent contradiction and absurdity ts, it must be
understood in subordination to, and exclusive of,
Legislative power. Should doubts still remain
about the application of these words in the Con-
stitution, it appears to me the rule for construing
statutes would be sufficient for our purpose. When
a statute is passed granting general powers, and
there is a proviso introduced limiting those gen-
eral powers, and a proviso within the proviso,
with expressions broad enousrh to affect many of
the g[eneral powers in the body of the statute, the
rule is, the last proviso shall be confined to the
providing clause, and not extend to the body of
the statute. Now, apply this rule to the nature of
Gk)vernment and of the Constitution. The Le-
gislative is the primary and original power; it
comprehends in it all Executive and Judicative
powers. That authority which can make laws
(when no restrictions are expressly imposed) can
cause those laws to be executed ; tor, what would
be the authority of a lawgiver if he did not pos-
sess the means of enforcing obedience? In an-
cient times, and in many countries at present,
where the science of (Government is very imper-
fectly understood, the Executive are the mere
creatures of the lawgiver, and wholly dependent
on his will ; but as advances have been made in
the science of Gkivernment, the propriety of di-
viding the power of Government, and giving the
Executive independence to a certain extent, has
been confirmed. The Executive, also, charged
with the execution and application of the laws
to these various objects, both dviUter et crimi-
fialiter, found it expedient to call to his aid judges
who might inform the Executive who were ob-
jects of animadversion and remuneration. These
judges, at first, were the mere creatures of Exec-
utive will : this will was a long time severely and
oppressively felt in the British €k>vernment; they
have now obtained a very high degree of inde-
pendence of tlie Executive. This view of the
progress of Government ^ives us to understand
that Executive authority is nothing more or less
than a reservation and limitation from Legisla-
tive authority ; and in the same manner the Judi-
cial authority is a limitation and reservation from
Executive authority. Apply these rules for con-
struing statutes to the Constitution and the three
branches of your (government. The Executive
authority being a reservation of authority out of
the general powers of the Legislature, when ap-
plied to them, is to be construed strictly, and to
take nothing by implication. The Judicial power,
also growing out of the Executive, and reserved
from it every enlargement of right or power in
behalf of the Judiciary, is to be taken as applicable
to the Executive and not the Legislature, except-
ing when they are expressly pointed out.
Mr. Chairman, the reasons which I have already
offered to the Committee, have induced me to be-
lieve the Constitution, when it says, ** the judges
shall hold their offices during good behaviour," did
not intend to deprive the Legislature of their or-
dioary power to constitute tribunals inferior to the
Supreme Court, or abolish or modify, from time
to time, as in their opinion the public j^ood, and
the due administration of judicial justice might
require. If, however, in the estimation of gentle-
men, the construction which I have attempted to
Sive the Constitution, is inadmissible, I ask of gen-
emen to reflect on the absurdities which grow
out of their construction, and the absolute ineffi-
cienev of this instrument, to produce the result for
which they contend ? Gkntlemen say, the Con-
stitution authorizes the judges to decide your laws
unconstitutional, and they are to hold their offices
independent of tne Legislature, to give greater effi-
ciency to this salutary check. I beg leave to in-
form gentlemen, ttie Constitution has established
no such principle. It is true your jud^ have
authority, derived from the nature of their power
as judges, to decide in this way; but the clause
which the gentleman speaks of has nothing to do
with this question. Whether the judge holds his
office at the will of the President, or for one year,
or during good behaviour, it is equally his duty to
decide a law void, which directly infringes the
Constitution. When there is a oostitution of
government, this principle is inseparably united
with the judiciary authority ; but prudent judges
will exercise this right with great caution, know-
ing the Legislature bas an equal right to put con-
structions ; they will also consider the Legislature
are obliged to precede them in their construction.
The evilresuUmg from a difference in opinion can-
not escape them. Hence it has been said, that the
judges, in deciding the question on the carriage
tax, observed they never would exercise this right,
unless this law and the Constitution were abso-
lutely irreconcilable. It might as well be said,
this was an evil inseparable from judicial authority,
as t( call it a salutary principle of the Constitution.
Why is it thought that the barriers which the
Constitution has opposed to the passage of hasty,
inconsiderate laws, are not sufficiently multiplied 1
Here is a House of Representatives composed of
about one hundred members, coming from every
part, and representing every interest in the United
States; on every law which passes this House, the
different interests and feelings of its membeiB are
699
HISTORY OF CONGRESS.
700
H. OP R.
Judiciary System,
February. 1S02.
rallied to guard the passasre. The other branch
is composed of memoers difTerinor in number, in
years, and the interests they represent. All cal-
culated to impose a restraint on such interests and
passions which, from any circumstance, might
na^e found way for a bill through this body. It
is finally to be presented to the President, who rep-
resents the entire interest of the people of the Uni-
ted States i and is accountable to them by an elec-
tion every fourth year; if he dissents, it must be
re-enacted by two thirds of both Houses. What
further checks can be wanting? There is a point
of precaution, beyond which it would not he sal-
utary to go. If the framers of the Constitution
contemplated your judges as the great safeguards
against the encroachments of the Legislature in
gassing unconstitutional laws, I ask, 'now does it
appen that the Constitution does not provide, that
everjr bill, previous to its becoming a law, should
be laid before the judges of the Supreme Court,
for them to decide on its constitutionality ? The
evils which result from a postponemient of this de-
cision until the law has gone into operation, are
too obvious to have escaped their notice. A law
which concerns the life, the liberty, and property
of the citizen, mav be many years in operation, be-
fore any decision nad, and then called up collater-
ally perhaps in the case of an individual, in which
it will have little effect upon its general operation.
Instead of placing the judges where they might
have rejected the cause wnich some gentlemen
seem to think likely to produce unconstitutional
laws, they are lefl to maintain a perpetual, but in-
effectual combat, against the effects of such laws.
This view of the subject convinces me the framers
of the Constitution never deemed the check of
which the gentlemen speak of any importance.
It has also been said, this part of the Constitu-
tion was intended to guard against the assumption
of judicial powers by the Legislature. That part
of the Constitution which declares, that "the Ju-
' dicial power of the United States shall be vested
' in one Supreme Court, and in such inferior
' courts as the Congress may, from time to time,
' ordain and establish." is the Constitutional safe-
fuard, in this respect. Congress not only can
ave no pretensions for assuming and exercising
Judicial powers, but the manner in which they
are organized utterly forbids it. Congress, sitting
as a court of judicature, would immediately be-
come contemptible; nor will history, since the
separation of the Judicial from the other powers
of the Government, furnish a single instance of
an assumption by the Legislature. If such tend-
ency could possibly exist, this holding of offices,
as gentlemen insist, would furnish the best possi-
ble pretext for an encroachment. A violent as-
sumption of all Judicial power, at once, would be
thought too daring ; the attack must be insidious ;
your courts are badly constituted ; the tenure of
their offices stands opposed to a reform; you must
wait until death or misbehaviour remove them.
This gradual extinction of your courts calls for
the substitution of other tribunals in their place.
Congress, during the progress of their extinguish-
ment, assumes to itself the exercise of such Judi- 1
cial powers as the courts become incapable of ex-
ercismg, until a convenient and Constitutional
opportunity presents, of constituting a judicial
system, which shall better answer the purpose^
intended by it. The plea of necessity is power-
ful; the ambitious and assuming rarely negleer
to improve it. An opportunity is also afforded
disappointed legislators of securmg for themselves
and friends a safe retreat. Here, by the power of
the Executive, is to be found an ample reward
for the loss of popularity.
Mr. Chairman, gentlemen say, their constnic-
tion of the Constitution alone will gire firmness
to the judges in checking the uncoDsiitatioDal
acts of the Legislature. Can they entertaio aa
opinion of their judges so unfavorable ? Will ibe
judges, under an apprehension of removal from
office by the Legislature, under the pretext of a
law for the better and more perfect organization
of courts, e:ive up all their independence of opin-
ion ? Will they forget their oaths ? Will they
forget everything which constitutes the excellea-
cy of a judffe, for the paltry consideration of a
salary, whicn, gentlemen say, is no more thaa
adequate to their services? Your judges are, or
ought to be, the first in talents and informatioa :
they must have experienced, as the gentlemes
observed, the vieinta annorum lucubrationet ; they
cannot, therefore, become the mere dependants oa
public favor. If the Government has no further
employment for them, their talents will secure
for them a private employment equally lucrative
This retreat will neither injure their property oi
hazard their reputation. I should have thought
if the dependence of the judges were to give the
alarm, the power of impeachment vested in thi<
House must have occasioned it. It is i a vain we
talk of independence of judges, whilst the rod of
chastisement hangs over them. Let us supp<^
a law in which this struggle between the Legisla-
ture and courts is most filely to be put to the test
In some great national emergency the Legislatare
pass a law which, in their opinion, is highly pro-
motive of the public £Ood ; tne safety of the coun-
try, iu the opinion ofthe Legislature, depends od
its execution ; your judges paralyze the operations
of Government by deciding that law unconstitu-
tional. Here is a collision of opinion destructive
in its nature, and for which a remedy must be
devised. The Legislature have decided it com-
patible with the Constitution; your judges the
reverse ; here is an impeachable fact ; an impeach-
ment is ordered. Gentlemen will say. the safety
ofthe judges is in the purity of their inteniioos:
I answer, f have seen with what facility gentle^
men can impeach motives ; I have seen it here ;
I have seen it in solemn trials at the bar. Ii is
this uncharitable spirit which has deluded the
world with blood ; which, from the Christian era.
and before, has swept from the earth a ffreat por-
tion of its inhabitants. We cannot easily discera
how the same truths, presented to different mind&
should appear different, especially after \re have
shown to such minds the connexion of truth, as it
exists in our own. We look for other causes, we
ascribe it to that corruption of heart which we
701
HISTORY OF CONGRESS.
702
February, 1802.
Judiciary System.
H. opR.
know, upoQ so many occasions, perverts the un-
derstanding. But, granting a conviction is not
produced, and they escape with impunity, where
will they find thereafter that delicacy of charac-
ter which is essential, so absolutely necessary, to
men of their pre-eminence? They are, at nest,
either left without a character, or forced and driven
from political life with infamy and dis&rrace. Mr.
Chairman,thereareConstitutional modes in which
obnoxious judges are exposed to be assailed by the
Legislature. It is said, you cannot abolish the
office of a judge, yet, you are at liberty to vary
the duties of the office. It is said, you must leave
enough of the duties to preserve the office. Gen-
tlemen have not clearly pointed out the distinc-
tion between office and the duties belonging to it.
That the duties of the office of a judge may be
varied or taken away, to a certain extent, has been
denied by no one. The gentleman from Dela-
ware has attempted to fix the right of the Legis-
lature in passing on this subject, upon the bona
fide intention with which they act. You may
legislate about the jurisdiction of courts, both civil
and criminal ; you may alter the jurisdiction of a
court, or transfer the jurisdiction to another court,
or give it to a court newly constituted ; but this
must be done with an upright intention, not to
destroy the office. Where there is no other lim-
itation to our power but the purity of intention
with which we act, the necessary inference is, that
there is no Constitutional barrier in the way, pro-
vided a majority are of opinion the measure is ex-
pedient. The Legislature has too frequently va-
ried the jurisdiction and duties of their courts to
admit any dispute on that point. They must
show us the true line of distinction between the
office of a judge and the duties belonging to it,
that, while we do our duty in relation to one, we
need not overleap the bounds of the Constitution
in relation to the other.
The truth is, and I am ready to admit it, the of-
ficer, the office, and the duties of the office, are
separate distinct things. An office may be thus
defined: "A place created by the Legislature,
' for the purpose of having some person placed
' therein to discharge such duties as may be as-
^ signed to it; the place created is the office j the
* person placed in it is the officer, and the duties of
^ the office, the services to be performed, be they
* more or less." Suppose your public debt all dis-
charged, would the loan offices established in the
difierent States for the purpose of aiding the dis-
charge of that debt, necessarily be abolished? I
take It not. The duties of an office are the rea-
sons which induce the Legislature to create the
officer, not the office itself. Cpngress are the sole
judges of the quantum uf duties necessary to jus-
tify them in creating an office, and when the office
is created, it remains, let the amount of service
assigned to it be ever so small, until abolished by
the power creating it. Should any of your courts
render themselves obnoxious to Congress by de-
ciding their laws unconstitutional, what is to be
done? Take from them all their jurisdiction,
both civil and criminal, and transfer it to other
courts, who will decide more in unison with your |
own opinion. By this measure you remove every
obstacle which the judges, by declaring your laws
unconstitutional, might throw in your way. Will
it be .^aid, if the office and salary remain, Congress
will never take from the courts their jurisdiction ?
If it should become an object of magnitude, they
certainly would. Wherever Congress have the
power to act, and the doing of that act would, in
the opinion of Congress, be promotive of the pub-
lic interest that power is immediately converted
into duty, and the obligation resting on them to
do the thing is indispensable. How, I ask then,
is this construction wnich gentlemen contend for,
to end? In some embarrassment of the Legisla-
ture, but no possible advantage to the public. It
terminates in a mere personal advantage to the
judges; they hold their offices to preserve their
salaries. Will this be thought a wise and national
provision? The office was created because there
were duties to assign to it, and the salary was
given for the discharge of those services. Con-
gress have seen cause, in a Constitutional mode,
to dispense with those services. I ask, then, ought
not the office to be abolis^hed, and the salary given
up? The maxim is, all compensations given to
the public agents of every description, are upon
the principle of rendition of services, and not as
sinecures. In this view of the subject^ will Con-
?^rpss conceive it their duty to appropriate money
or the pavment of their salaries ? Will gentle-
men, the friends of those judges, ask it ? Will the
judges themselves receive it ? I cannot say what
the feeling of others may be; but for myself, at
the stretching forth my hand for such purpose, the
suffusion of shame would redden in my face. I
should blush from a consciousness of guilt.
Mr. Chairman, I shall say a few words in an-
swer to some observations advanced by the gen-
tleman from Delaware. He said we could not do
that indirectly which we could not do directly.
Meaning, I suppose, since we could not remove
the judges from their offices without abolishing
them, we could not abolish their office, and there-
by do it. This proposition is so far from being
true, that the converse of it is nearer true. We
cannot make a single appointment to office ; but
we can create offices by which it becomes indis-
pensably necessary for others to do it. We can-
not directly take from the inhabitants of this city
a shilling's worth of property, but indirectly, by
the removal of the seat of Government, we can
take from them one-half they possess. We can
create and abolish offices, because we have duties
assigned to us in relation to them, and we are re-
sponsible to the community for the faithful dis-
cnarge of those duties ; but in relation to appoint-
ments we have no duties, we have no responsibili-
ty. The gentleman last mentioned, in answer to
an observation which had been advanced by some
gentleman opposed to him, that the power to pass
a law necessarily implied a power to repeal it,
showed us two instances in which that risht did
not exist. First, where the ri^ht to repeal the law
was expressly taken away, as in the case of dimin-
ishing a judge's salary j this right was never con-
tended for. The second instance was, where the
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H. ofR.
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taw was in ihe nature of a contract ; no one ever
supposed a contract could be repealed. The gen-
tleman was candid enough to inform us at the
time, that he did not pretend it applied to the case
under consideration. Lastly, he urged very stren-
uously the British statute, which provides that
the King, upon the application of both Houses of
Parliament, should have power to remove the
judges; and also the constitutions of two of the
States, nearly to the same effect. From the in-
sertion of the provision in the British statute, and
in the constitutions of the two States respectively,
ne insisted it was a fair inference, that no such
power previously existed. It is true no such pow-
er did previously exist. The inserting this provi-
so in the act of Parliament, and the State consti-
tutions before mentioned, enabled the Parliament
and Legislatures of the two States respectively,
to operate on the persons of their judges, to re-
move them from office ; an operation wholly un-
warrantable without such provisions.
Mr. Chairman, I shall take the liberty to say a
few words upon the episode of this debate, the
eulogy of the late Aaministration. Gentlemen
say the affairs of the Government, by them intrust-
ed with its management, have been conducted
with the greatest wisdom and purest intentions. I
am not disposed to arraign motives. I am inclin-
ed to give full credit on that score. It has been
said in justification, that the expensive measures
into which we have been led by the Government,
arose not from any causes reprehensible in the
Government, but from causes imputable to others,
from circumstances and events not indeed excusa-
ble in those who produced them j but on the side
of your Government uncontrollable, irresistible.
All our troubles, external and internal, from the
commencement of the Government to the present
time, are said to be of this description. They ask,
and appeal for the decision, whence your Indian
war ? On the part of your Grovernment, say they,
was displayed wisdom, prudence, moderation, and
conciliation, towards those hostile tribes. There
was an allowance for the ignorance, the preju-
dices, and the weaknesses of a savage people. A
disposition to enlighten, persuade, and inspire
those barbarian nations with a sincere confidence
and belief in the friendship of the United Stales.
But on the opposite side was displayed a spirit im-
placable, revengeful, blood-thirsty; a disposition
to imbrue their hands in the blood of your chil-
dren ; a spirit which nothing but the most lively
apprehension for their own safety could extin-
guish. It is inquired also, from whence arose your
Western insurrections? Did they proceed, say
gentlemen, from your Government's deprecating
this principle, that the understanding as well as
the will of the people should bow to the laws?
Were not the singular and formidable appearan-
ces arising out of a new Government sufficiently
explained ? A second Government, bringing with
it a debt of eighty millions of dollars, a heavy im-
post, and a demand for further contributions in a
way of ail others the most detestable to the peo-
ple. Is there not a manifest distinction to be ta-
ken between a heavy and insupportable burden of
taxes, when demanded by a foreign Grov^ernment
and when levied by your own ? Is an explanation
to the people of the justice and propriety of your
laws to be expected from your Governmenr, or is
it sufficient that they cause them to feel submis-
sion to them? Your people stand in need of
Government, and the rulers do right in seeking
occasions to exercise it, so long as they discover
an indisposition to submit. The constituted an-
thorities of a country should never cease govern-
ing until there is manifested on the part of the
people a disposition to acquiesce in laws in which
they can discover no traces either of utility or jus-
tice : your Government stands justified. But oo
the part of the insurgents was evidenced a spirit
hostile to all Governmental authority ; a spirit
opposed to every species of subordination ; a Jaco-
binical spirit, a disposition which originates from
an aversion to all authority^ government, and sub-
ordination ; a savage dissocial spirit, which fattens
on its own sinister ^iews and purposes, but pines
at the prosperity of others. Gentlemen speak also
of the misunderstanding with the French Repob-
lic, and of the evils and troubles dependent there-
on. On the part of your Grovernment, say they,
was entertained a high sense of gratitude for the
great and essential services rendered by that na-
tion during a long, distressing, bloody Revolution-
ary war, in which we had lately been engaged.
Their present circumstances excited compassioo.
A great, a generous nation, struggling for the bless-
ing and sunshine of liberty, opposed by intercaJ
dissensions, and resisted by every earthly power.
At a time when despair began to brood on the
countenance, and they were sinking under the
monstrous pressure of external and internal force.
assistance and favors were asked of your Govern-
ment by their Minister, which he declared was
not intended to exceed, on our part, the strict |^
silion of a neutral situation. They were refused.
it is true, but in a manner so pleasant and agreea-
ble, it ought not to have given offence. Their
pressing and urgent solicitations were continued
until the American Government were compelled
to refuse the civility of an answer. Offended at
this necessary and justifiable conduct of your Gov-
ernment, their Minister withdrew, and what fol-
lowed? They discovered, by a treaty presently
made with a belligerent nation, you bad violated
your neutrality by authorizing the capture and
condemnation of French property on board of
American vessels, and by permitting American
vessels, bound to French porL^ with provisions, to
be delivered, upon paying a reasonable mercantile
profit. They therefore, under a sentence to be
found in your treaty with them, placing^ them up-
on the footing of the most favored nation, author-
ized the capture of British property found on board
American vessels. Ill s said they are an aspiring
ambitious nation ; their rulers thirst for domina-
tion ; there is no medium between resistance and
unconditional submission. I have no dispo^itioD,
on the present occasion, of entering into a minute
investigation of the merits of this controversv-
An attempt of that sort would prove ineffectual
All the minutiae of circumstances necessary tc
705
HISTORY OF CONGRESS.
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February, 1802.
Judiciary System.
H. OP R.
form a correct opinion, cannot, at this late period
of time, be brouglit up. These circumstances and
events have all passed in review before the people
of the United States; their judgment has been
made up; they have rendered judgment, and the
judgment is against those gentlemen to whom we
stand opposed. They should acquiesce; they
should not argue after judgment.
Mr. Chairman, in relation to the expediency of
this measure, gentlemen should consider we have
the most expensive Government on earth. It may
be denominated imperium in imperio; doubly
harassed with Legislative, Executive, and Judi-
cial officers. A Government so complicated and
expensive ought to be administered with economy.
We should reflect, the bane of all Governments
has been the extravagance of their expenses.
Government is instituted for the protection of pro-
perty ; but when the expense of protection nearly
equals the amount protected, ft defeats its own
end. By the document on your table relating to
these courts, it appears, that, in a period of ten
years, there has been depending therein upwards
of eight thousand suits, which will fall short of
one tEou.sand a year. The yearly salaries of the
judges exceed tnirty thousand dollars. This ex-
pense, averaged upon the suits, exceeds thirty dol-
lars in each suit, simply for the salaries of the
jadges alone. If other expenses of suits are pro-
portioned, the bill of cost must be enormous. Com-
pare this expense with the expense of State courts.
In the State in which I live, the county courts
are the courts of entry for civil actions or suits ;
the compensation of tne judges is paid by the suit-
ors. Tneir whole compensation, when averaged
OQ the suits, does not exceed a dollar and a third
of a dollar to each. The disproportion of expense
then, by this calculation, is more than twenty to
one. I am of opinion the number of suits in the
circuit courts of the United States will be less for
ten years to come, than they have been for ten
years past. Several causes have existed which
served to increase the number of causes for the
period which is past. The troubles in Europe,
and the embarrassed situation of our commerce
for the most of that period, has greatl]^ increased
oar maritime suits, both civil and criminal. * The
probability, and almost certainty of the relinquish-
ment of all your internal taxes is another cause
which will tend to a further decrease. That
spirit of speculation which was created and put
in operation by funding the public debt, and other
measares of the Government, since it commenced
its operation, has been a fruitful source of litiga-
tion m these courts. None of the beforementioned
causes, it is hoped, will hereafter exist, particular-
ly for a considerable period of lime. My reasons,
however, for the expediency of this measure, are
not grounded on a calculation of expense. I have
no idea that the circuit courts of the United States
ought entirely to be done away. My opinion is,
the present judges of these courts are supernum-
erary. You may preserve the circuits of the Uni-
ted States as they now are, viz : six. You may
associate one of the judges of the Supreme Court
with the three district judges residing in each of
7th Con.— 23
these circuits. Let these judges constitute the
circuit court in their respective circuits. In trials
at law uniformity of decision is said to be the
great desideratum. In effecting this end, we are
to look to the iofiuence your Supreme Court will
have over the other tribunals. This court, as was
beautifully expressed by the gentleman from Dela-
ware, is the conscience which is to actuate all the
subordinate courts. But how is this conscience
to operate under the present system ? There is
no personal connexion between these courts. The
few solitarv suits which may be brought up by
appeal to the Supreme Court, will have but little
influence, and even these present themselves in
so new and doubtful a shape, that very little is to
be understood about the iustice or legality of the
judgment in the. court below. Upon the plan
which I propose, one of the judges of the Supreme
Court will be present in your circuit courts, by
means of which an opportunity will be afforded
him of infusing into every part of a trial, that
superior le^l knowledge which he may possess.
Your district judges will also profit from this con-
nexion. It will be a source from which they
will derive much legal knowledge and improve-,
ment ; and it will show itself in the trial which
may be had in their respective districts. No
means can be derived to give the judges of your
Supreme Court so correct and so universal influ-
ence over judges of subordinate tribunals. I am
also persuaded that all the business which belongs
to the courts of the United States, can conveni-
ently be done by associating the supreme judges
and the district judges, in the manner proposed.
If so, the present judges of your circuit courts are
supernumerary, and their salaries are, as it relates
to the public, thrown away. The gentleman
from Delaware has indeed suggested, the jud^e
of the Supreme Court who may have presided in
a trial below, when the same is removed into
the Supreme Court, may set himself to intrigue,
and condescend to low arts and management, to
gain over the other judges to the support of his
opinion. This is too improbable to merit a se*
rious refutation. It is the pride of a judge, par-
ticularly in a station so exalted, to hold himself
at all times open to conviction, and nothing gives
him greater pleasure than to have it in his power
to correct an error, which he may discover in a
former opinion. For these reasons, Mr. Chair-
man, I am against striking out the first section of
the bill.
Mr. Macon. — As no other member at present
seems disposed to take the floor, I will ask the at-
tention of the Committee for a few minutes. I have
attended with the greatest patience and diligence
to the arguments of gentlemen who oppose the
bill as unconstitutional ; and had they produced a
single doubt in my mind on the point of consti-
tutionality, I should most certainly have voted
with them against the bill on your table ; but I can
with truth say, I have not heard any argument
which has in tne least changed my first conviction,
that we have a Constitutional right to pass it.
I should not, I believe, have spoken on this ques-
tion, had not my colleagues, who differ with me in
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February, 18(6
opinioD, thought proper to bring into view a vote
of the Legislature of the State, instructing her
Senators and recommending it to the Representa-
tives to use their best endeavors to obtain a re-
peal of the last Judiciary act. On this resolution
of the State Legislature, they made some extraor-
dinary remarks, which I mean to notice; but first
Eermit me to inform the Committee, that it has
een the constant practice of the Legislature of
that State, from the commencement of the Gene-
ral Government to the present dav, to instruct her
Senators, and to recommend to her Representa-
tives, to pursue such measures on all tlie great
national (questions that have occurred, as the Le-
gislature judged the interest of the State re(;|uired,
and this proceeding has never been considered
improper. I shall endeavor to answer the gentle-
men in the order they spoke, beginning with my
colleague ^Mr. Henderson) who was first on the
floor. If 1 understood him rightly, (and if I do
not he will correct me, because it is not my desire
to misstate a single word,) he said that the Legis-
lature of the State might have adopted the reso-
lutions in consequence of the Message of the Presi-
dent; but, upon examination of the dates, this will
be found to be impossible. The Message could
not have reached the Legislature before tlie ques-
tion on the resolutions was taken and decided ;
and on no important question was that body ever
more unanimous; and though my colleague has
said the question was there viewed but on one side,
and decided in a manner exparte^ yet I will be bold
to say, if there were any member in that Legisla-
ture who thought on this subject as he does, he
enjoyed the same ri^ht there that my colleague
does here, to deliver nis sentiments.
Knowing as I do, the great talents and integ-
rity of my colleague, and I believe no one on this
floor knows them better, I was surprised when he
charged others with being under tne influence of
passion, when his conduct must convince them
chat he was guided by the very passion which he
attributed to others. He quoted the constitution
of North Carolina; let us examine it, and see
whether his argument can be aided by the prac-
tice under that instrument. The thirteenth article
is in the following words; that " the General Assem-
^ bly shall^ by joint ballot of both Houses, appoint
court of law and of equity,
and attorney general, who
commissioned by the Governor, and
* hold their offices during good behaviour." On
this clause he noted the independence of the State
Judiciary ; and thev are independent so long as
the law creating tneir office is in force, and no
longer; and it is worthy of notice, that in this
section no mention is made of salary, and yet the
judges have been considered as independent as the
judges of the United States. Soon after the adop-
tion of the Constitution, the Legislature of the
State established courts in conformity thereto;
first county courts, and then superior, ahd after-
wards, by a Legislative act, without electing a sin-
gle new jud^e, gave the superior courts the addi-
tional jurisdiction of a court of equity, and never
a solitary complaint, that this law was unconsti-
^ bly shall, by joint ball
' judges ot the supreme
' judges of admiralty, s
*■ shall be coramissioni
tutional; and it must be acknowledged, that if ysc
can make a court of law also a court of equitj. by
a Legislative act. you can by the same power take
it away; and what becomes, in this case, of tk
commission which is to be held during gt>odb^
haviour? It is, according to my construciioiL ta
last no longer than the law which created liie
office remains in force, and this is long enough tc
make the judges independent. As to the salarr
of the judges of North Carolina^ the twenty-bn:
section of the Constitution says, '* they shall hare
adequate salaries during their contiDuance in
office," and yet with this clear right in the Lefis-
lature, to lessen as well as to add to their salariev
the judges, it is agreed, are independent. My col-
league well knows, that many attempts hare bcea
made to deprive the superior courts of exercisios
any jurisdiction in cases of equity ; and he aJ^o
knows, that attenints have been made to establish
a court of appeallf which should revise the decis-
ions of the superior courts now in being; and bf
the constitution of the State any supreme coan
may, on presentment of a grand jury, try the Gror-
ernor for mal-administration, £c.,* and I beliere
the present courts are authorized to do this. !
have not at this place been able to see the ac:
which gives this authority, but no doubt is enter-
tained of the fact.
It is clear then, that in North Carolina, all par-
ties have thought, that "during good behavicorr
only meant so long as the office existed ; becaosg
by establishing a court of appeals, the judges dot
in being would not be supreme judges, and in all
these various attempts no one ever charged eithtr
of them to be unconstitutional. On examinaticc
of the constitution of North Carolina, it wiK be
found that it makes provision for theappoinimeE:
of other officers by the Legislature, but says do-
thin^ about adequate compensation, except ia 6;
section last read, and if you take the office avaj
what is an adequate compensation for doing i^
thing ? Another proof might be drawn from tb<
constitution of North Carolina, in favor of the
opinion I hold, which is taken from the tweatT-
ninth section, that " no judge of a Supreme Coun
shall have a seat in the General Assembly,''' au
my (^lleague knows, that the present judges cog :
not hold a seat there, because they are suprecie
judges. And he also knows, that no one eir
doubted the Constitutional right of the Legisla-
ture to establish the courts before mentioaei
and it seems to me this, on his construction, wwsl:
be a violation of the Constitution, because, haviaz
once made a Supreme Court, it must always rt^
main so. to secure, what he calls, the indepea^
ence of the judges.
Sir, I was astonished when my coUeagae saii
that the judges should hold their offices, whether
useful or not. and that their independence wa^
necessary, as ne emphatically said, to protect tit
people against their worst enemies, themselves:
their usefulness is the only true test of their nece^*
sity, and if there is no use for them, they ougn:
not to be continued. I will here ask my colieagce
whether, since the year 1783, he has heard of auir
disorder in the State we represent, or whethe
709
HISTORY OF CONGRESS.
710
February, 1802.
Judiciary System.
H. OP R.
any act has beeQ done there which can warrant
or justify such an opinion, that 'Mt is necessary
to have judges to protect the people from their
worst enemies, themselves." 1 had thought we,
the people, formed this Goveroment, and might
be trusted with it. My colleague never could haye
uttered this sentence, had he not been governed
by that passion which he supposes govern others.
It is true that we are not a rich and wealthy State,
but it is equally true, that there is no State in the
UnioD more attached to order and law; and my col-
league himself would not say that it was necessary
CO have judges for this purpose in the country we
represent; the people there behave decently with-
out having Federal judges or standing armies to
protect I hem against themselves. Is it not strange,
that the people should have sense enough to pay
their taxes without being driven to it by superior
force, and not have sense enough to take care of
themselves without this new* judiciary 1 They
certainly contrived to do this before the act estab-
lishing this Judiciary passed.
Another expression of his equally astonished me ;
he said, that on the 7th day of December, a spirit
which had spread discord and destruction in other
countries, made its entry into this House. What!
ire we to be told, because at the last election the
people thought proper to change some of their re-
presentatives, and to put out some of those who
lad heretofore been m power, and to put others
n power of different opinions, that a destroying
mirit entered into all the public functionaries?
^or what, sir, are elections held, if it be not that
:he people should change their representatives
i¥hen they do not like them ? And are we to be
:old from the house-tops, that the only use of elec-
;ions is to promote, not public good, but public
nischief ? We are also told, that this Constitu-
;ion was to be destroyed by the all-devouring en-
ergies of its enemies. Who are its enemies? We
ire not, nor do I think there are any in this House;
:>ut there are parties as well in this House as out
>f doors, and no man wishes more sincerely than
[ do that they were amalgamated, that we might
ret rid of all party gall, and free ourselves from
mproper reflections hereafter. But by what en-
ergy is the Constitution to be destroyed ? The only
mergy heretofore used, and which made the change
ID much complained of, was the energy of elec-
ion. Sir, I scarcely know what to say when I
lear such uncommon sentiments uttered from a
lead so correct and a heart so pure; it is the ef-
'ect of a passion of which he is unconscious.
\gain he says, if you repeal this law, the rich
yill oppress tne poor. Nothing but too much law
;an anywhere put it in the power of the rich to
>ppress the poor. Suppose you had no law at all,
;ould the rich oppress the poor? Could they get
{ix, eight or ten per cent, for money from the poor
without law? If you destroy all law and Gov-
irnment, can the few oppress the many, or will
he many oppress the few? But the passing the
)ili will neither put it in the power of the rich to
>ppress the poor, nor the poor to oppress the rich.
There will then be law enough in the country to
jrevenC the one from oppressing the other. But
while the elective principle remains free, no great
danger of lasting oppression can be really appre-
hended ; as long as this continues the people will
know who to trust.
He has also brought into view the repeal of the
internal taxes, and the naturalization law, and
these are some of the measures which this de-
structive spirit approves; and will they oppress
the poor ; will the repeal of taxes oppress the poor,
or will it oppress anybody? >if it ^*ill, the peo-
ple will cry out with the gentleman from Virginia,
(Mr. Ranoolph,) give us more oppression. You
cannot give us too much of this Kind of oppres-
sion, provided you pay our debts and protect us
at home and aoroad. One word respecting the
naturalization law — observe the danger appre-
hended by North Carolina on this hea^^tbs. lor-
tieth section of her constitution is in ttie^lfollow-
ing words : " That every foreigner who comes to
' settle in this State, having first taken an oath of
^ allegiance to the same, may purchase, or by other
' just means, acquire, hold, and transfer land or
' other real estate, and after one year's residence
' shall be deemed a free citizen." After tbii?, can
we believe that the people of that State have any
fear of the few aliens that may wish to settle
among them ?
It is asked, will you abolish the Mint, that splen-
did attribute of sovereignty ? Yes, sir, I would
abolish the Mint, that splendid attribute of sove-
reignty, because it is only a splendid attribute of
sovereiglity, and nothing else; it is one of those
splendid establishments which takes money from
our pockets, without bein^ of any use to us. In
the State we represent, I do not believe there are
as many cents in circulation as there are coun-
ties. This splendid attribute of sovereignty has
not made money more plenty ; it has only made
more places for spend in*^ money.
My colleague next said, what I sincerely wish
he had not said, that if you pass the bill, he would
neither shed a tear nor heave a sigh over the Con-
stitution. If we pass the bill, and the people should
think we did wrong in so doing, nay, that it vio-
lates the Constitution in their opinion, have they
not the power to bring it back to its original stam-
ina, by a peaceable corrective, which they can ex-
ercise every two years at the elections ? Suppose
this done, would not the Constitution then be
worth something, even in his estimation? Would
it not be better to cherish this expectation than to
destroy the Constitution, and put every thing afloat?
Would not this be much better than confusion,
anarchy, and the sword of brother drawn against
brother ? As to myself, I confide in the people,
firmly believing they are able to take care of
themselves, without the aid or protection of anj
set of men paid by them to defend them from their
worst enemies, themselves.
Permit me here, sir, to advert to the resolutions
of North Carolina. [Mr. Macon here read them.]
In commenting upon these revilutions, my col-
league certainly used very complaisant language
towards the Legislature of that State ; but it seem-
ed to me that he gave them a back-handed com-
pliment when he said they passed these Yesolu-
i
711
HISTORY OF CONGRESS.
712
H. OF R.
Judiciary System.
February, 19S2.
tions without a fair hearing. But, sir, is there
anything indecent in them? Have they express-
ed a sentiment which they had not a perfect right
to express? They wish the law repealed, because
they believe the old system adequate. They wish
the law repealed, because it produces a useless ex-
pense. This, perhaps, they more sensibly fell
from being in the habit of conducting their public
affairs with the greatest economy; and, finally,
they wish the law repealed, because it is an use-
less extension of Executive patronage ; and they
at the same time declare that they have due con-
fidence in the Chief Magistrate of the Union.
Yet they do not wish offices continued merely
that persons may be appointed to fill them. I per-
fectly agree with them in every particular.
We have beard much about the judges, and the
necessity of their independence. I will state one
fact, to show that they have power as well as in-
dependence. Soon after the establishment of the
Federal courts, they issued a writ — not being a
professional man I shall not undertake to give its
name — to the Supreme court of North Carolina,
directing a case then depending in the State court
to be brought into the Federal court. The State
judges refused to obey the Summons, and laid the
whole proceedings before the Legislature, who
approved their conduct, and, as well as I remem-
ber, unanimously ; and this in that day was not
-called disorganizing.
As so much has been said about the resolutions
of North Carolina, I will repeat again, that it is
no uncommon thing for the Legislature to express
their opinion on great national subjects, and will
ask my colleagues whether thev ever heard any
complaint of the resolutions about the Western
land ? And whether none of them in the Legis-
lature never voted for the resolutions about the
Western land, nor about post ofiices and post
Toads ? The Legislature surely bad as much right
to ffive an opinion as the Chamber of Commerce
of New Yorlc; but, put it upon what footing you
please, it is entitled to respect, as the uninfluenced
opinion of so many respectable individuals; and
the Legislature never intended nor wished that
the recommendation to the representatives should
be binding on them at all events; and if I believ-
ed the bill to be unconstitutional, I should no(
▼ote for it, but as I do not, I hope the gentleman
will pardon me for pursuing my own sentiments,
and voting for it. I hope no man will ascribe to
•tne a disposition to produce anarchy in my native
country. Although poor myself, I feel as strong
a desire as any one on this floor for the preserva-
tion of good order and good government.
It has been asked, by the gentleman from Del-
aware, (Mr. Bayard,) will the gentleman from
Virginia (Mr. Giles) say^^the assuming the State
debts was improper? I have no hesitation to say
that it was done at an improper time; and, in show-
ing that it was, I hope I shall be pardoned for trav-
elling over topics that really have nothing to do
with the merits of the present question. That act
is now done, and, by what I say, it is not to be
understood tnat I wish Congress should put their
hands upon it. It will be noticed that Congress
are authorized to establish post ofllices and po^t
roads for the general and equal dissemination of
information throughout the United States; ands
it not known that no act was passed on that sub-
ject before the assumption of tne State debts, and
that there was only one post road which ran next
the seacoast ? Of course, the people in the iatt-
rior country had no communication "with those u
the Government, nor had they any knowledge of
what was doing. But the rich specalator, wfao
was on the spot, by going into the country when
the people were ignorant of what had been doet
purchased up their certificates — the only rewiid
they had received for their toil and woond^—tt
about one-tenth of their value. And it is possiUe
that many of these purchases may have been made
with public money. And it is clear to me, tbtt
if a proper number of post roads bad been estab-
lished, before the act was passed for assuming the
State debts, the war-worn soldier would not have
lost half as much as he did by the speculation ob
his certificates.
The gentleman from Delaware says we drors
them to the direct tax. This is the first time I
ever heard of a minority driving a majority. Is
such a thing possible ? Did we drive tnem to tb€
measures that made such immense expenditures
of the public money necessary 1 No, sir. we op-
posed those measures asuseless; and the true groaik
of the direct tax is this : the public money was ex-
pended; public credit was stretched, until, to fn-
serve it, it became necessary to provide for paying.
and the means adopted were the direct tax.
The same gentleman tells us there is nothisf
sacred in the eyes of infidels. We know our cp-
ponents. The allusion here is too plain not to be
understood ; and evidently is, that those who difier
with him in opinion are infidels. This is a stm^
expression; it would have seemed that his love^
Americans ought to have prevented the use of it
I shall make no answer to it, except to remind bim
that in a book, the truth of which he will not 6nj.
he will find these words, *^ Judge not, lest ye be
judged J^ He also said that gentlemen might lock
to the Executive for victims, and not to the judges.
Notwithstanding this remark, and without con-
demning or approvinfif the appointments made ly
the late President, I hope I may be permitted to
express my own ideas, without being considered
as under the influence of the present President
Prior to the fourth of last March, all, or nearly all
the offices in the gift of the Executive were in the
hands of men of one political opinion. On tfaa:
day the people changed the President, because
they did not like measures that had been pursued.
But, to those who have attended to the debates ia
this House, it must appear strange, indeed, to hear
gentlemen complain of the President having is
office those who agree with him in opinion, wfaea
we were formerly told that the President wonld
do wrong if he appointed to office those who dif-
fered from him in political opinion ; and wheneTcr
he had done it, he had had cause to repent of it
Was that opinion then correct, and now false, in
the estimation of gentlemen ? For my part, I did
not think the opinion correct when I first heard it.
713
fflSTORT OF CONGRESS.
714
February, 1802.
Judiciary System^
H. OF R.
nor hare I since beea coDvinced of its propriety.
Indeed, before I can think so^ I must have a worse
opinion of human nature than I now have, and
think of men as they pretend to think of us, which
God forbid ! But, taking things as tbev are, what
course, on this point, is most fair and tolerant?
The community, as well as this House, is divided
into two parties. It seems to me, that all the most
tolerant could wish, would be an equal division of
the offices between the parties, and thus you might
fix a reciprocal check -on each other. But I ask
gentlemen to be candid, and tell me whether they
are at this time equally divided ? Sir, they know
that there are many more persons who now fill
offices who agree with them in opinion than agree
with us. As to myself. I care not who fill offices,
Frovided they act honestly and faithfully in them,
can with truth say. so little party attachment
have I on this head, tnat I never solicited to have
any man discharged from office. Knowing that
a large majority of those now in office agree with
those gentlemen in political opinion, I am at a
loss for the cause of all this clamor. They have
no doubt some reason for it, which has not been
declared. The fact is, they have a majority of
the offices, and a majority of the people are with
us. I am contented it should be so.
The gentleman has dwelt much on a subject
which, from my habits of life, I am not enabled
fully to notice; I must decide for myself, and.
judging with the small share of information I pos*
sess, I cannot asree with him. I do not pretend
to understand the subject as well as be does, but
certainly he was not so perspicuous as it might
have been expected. I mean, sir, his opinion on
the common law. He told us that the judges only
adopted such parts of the common law of Eng-
land as suited the people, and that be apprehend-
ed no danger from this. Sir, I do apprehend dan-
ger from this, because I cannot find any authority
given them in the Constitution to do it, and I sup-
pose it is not an inherent right. Without pre-
tending to know the extent of this common law, it
has always appeared to me to be extremely dan-
gerous to the rights of the people, for any person
not elected by them, to undertake to exercise the
power of legislating for them, and this adopting the
common law is only another name for legislation.
He has also told us, that the States had adopted
it. If the States adopted it, it became a law of the
State and not of the United States ; but the adop-
tion of it by the individual States, could not give
the judges a right to adopt it for the United States.
The Judges have no powers but what are given by
the constitution or by statute, and this power can-
not be found in either. He even told us, that the
Constitution was a dead letter without it. I do not
believe this was the opinion of the Convention that
formed it, and by an exai^ination of the debates
of the State conventions that ratified it, it will not
be found to be their opinion ; nor is it, I believe,
the opinion of all the judges of the Supreme Court,
that the Constitution would be a dead letter with-
out the common law of England. I have under-
stood, that one af them has given it as his opin-
ion, that the commx>n law was not in force in the
United States. The gentleman told us, that the
Sedition law was Constitutional, and that the
iudges had so determined. This we have often
been told before ; but, in my opinion, the contrary
is the fact. I firmly believe there is no authority
given in the Constitution to pass that law, and
although the judges a^nree with him in opinion, I
believe the people agree with me. He, like my
colleague, did not pretend to say that the judges
under the old system had too much business, but
too much riding. The whole burden of the song
seems to be riding and salarv. salary and riding ;
you may destroy the office, out the officer must
have his salary, and this I suppose without riding.
The old system was, in my opinion, equal to every
object of justice contemplated by its establish-
ment.
The gentleman has ascribed to us the wish to
have the courts viciously formed. Is it possible,
that he can have so degrading an idea of the
American people, as to suppose they would send
men here to legidate on their dearest interests,
so base and corrupt, as to wish their courts so form-
ed that vice and not virtue should prevail in tbemi
I am happy to say that gentleman is the only one
who has uttered a sentiment so abhorrent to human
nature. He also said, if you permit the State
courts to execute your laws, you would have no
Constitution in ten years. I have not heard any
one express a desire tnat you should have no courts,
or that the State courts should execute all your
laws; but I do not believe, that if the State courts
were to execute your laws, that they would de-
stroy the Constitution which they are sworn to
support. He has told us that we paid millions for
an army which might be useless, and refused
thousands to a Judiciary which was useful. As
to the army, those who agree with me in senti-
ment are as clear of it as it is possible for men to
be of any political sin whatever; we always con-
sidered them useless, except in a small degree, and
voted against them.
But, says he, this is the President's measure ; he
may prevent it. This is indeed a bold assertion.
Are a majority of this House so degraded, so mean,
so destitute or honor or morality, as to act at the
nod of a President? What the majority may
hereafter do, I cannot tell; but I can say, as yet
they have done nothing which even the eye of
criticism can find fault with. But are we to in-
fer from these charges, that it has heretofore been
the practice for the President to give the tone to
the majority of the House, and to wield them
about as he pleased? I had, before, a better opin-
ion of our adversaries. I had thought, and still
think, that no man can wield a majority of this
House; that the House is, and has been, too inde-
pendent for this ; to think otherwise, would be de-
grading to my country. Sir. I do not believe the
gentleman from Delaware nimself, with all his
talents, can wield those with whom he generally
votes, at his will and pleasure.
Much has been said about the manner in which
the late law was passed, and the purpose for
which it was done. I hope I shall be pardoned
for saying nothing on this subject ; enough, if noi
715
HISTORY OF CONGRESS.
716
H. OF R.
Judiciary System.
February, 18Q2.
too much has already been said on it; nor can I
conceive that it has anything to do with the
question.
The true question is, were there courts enough
under the old system to do the business of the na-
tion? In my opinion there was. We had no
complaints that suits multiplied, or that business
was generally delayed; and when gentlemen talk
about Federal courts to do the business of the peo-
ple, they seem to forget that there are State courts,
and that the State courts have done, and will con-
tinue to do almost the whole business of the peo-
ple in every part of the Union ; that but very few
suits can be brought into the Federal courts, com-
gired with those that may be brought into the
tate courts. They will be convinced that under
the old system we had federal judges and courts
enough; oesides, sir, I believe each Slate knows
best what courts they need, and if they have not
enough, they have the power and can easilv make
more. I am sure the old system answerea every
purpose for the State I live in as well as the new.
Until the present session, the people have not
presented a single petition to this House on the
subject of courts; and now^ I believe, there are a
majority of the petitioners in favor of the repeal;
but their not having heretofore petitioned, is con-
clusive, in my mind, that they were perfectly satis-
fied with the old system. They know that they
have the ri^htto petition, and we know that they
have exercised it whenever they pleased, and if
they wanted these new courts, they would have
toldf you so by petition.
The gentleman said he would forgive the gen-
tleman from Virginia (Mr. Giles) for everything
he said, except disturbing the ashes of the venera-
ble dead. I did not understand the gentleman
from Virginia to say a word about the illustrious
Washington. It is needless for me to say what I
think of him; I have said before what my opin-
ion was; I sincerely regret that ever his name
should be mentioned in this House in such debates
as these; respect for his memory ought to forbid it.
He also told us, that we attempt to do indirect-
ly what we cannot do directly. I do not know of
any such attempt. The bill is certainly a direct
attempt to repeal the act of the last session; but I
have seen things done indirectly which I believe
could not have been done directly: such was the
army of volunteers; it surely was an indirect at-
tempt to officer and get possession of the militia.
The same gentleman challenges us to say there
are any in the United States who prefer mon-
archy. In answer to this I say, there were such
during the American revolutionary war, and I
have not heard that they had changed their opin-
ion ; but as he has told us there were jacobins in
the country, it is not unfair to suppose there nre
monarchists, they beinff the two extremes. We
are also charged with a design to destroy the whole
Judiciary. If there is such a design, this is the
first time I ever heard it; no attempt of the kind
is yet made. But what is the fact ? We only pro-
pose to repeal the act of the last session, and restore
the Judiciary exactlv to what it was for twelve
years, and this is called destroying the Judiciary.
The same gentleman tuld us that under the new
system you would have an uniformity of decision
in each circuit, and that it was not very desirable
to have it uniform in every circuit. I dififerwitlk
him ; I think uniformity of decision desirable, for
this reason, that a person knowin!; a decision of
the Federal court on any given point to aoy part
of the Union, may know that the same decisioa
would prevail in every other court of the United
States; and unless there is an uniformity of de-
cision, you may have a different one ia each cir-
cuit; a determination one way in Delaware, and
another in Maryland. But, sir, from the very na-
ture of the courts, you must have an uniform de-
cision in either system ; because, if different courts
should decide differently, appeals would soon be
carried to the Supreme Uourt. where the qaestion
would be finally settled.
Another curious principle was advaoced by the
same gentleman, which was this, that the judges
received their pay from the date of their commis-
sions. If they do, I am confident they are the
only officers appointed by Government that do.
I had always before understood, that the pay of
officers did not commence until they accepted
their appointments. On his idea a judge mi^bt
have pay as a circuit judge, while he was holdiof
a court as district judse, because he might be a
district judge, and appointed a circuit judge with-
out his knowledge ; and before he was informed
of his new appointment, might hold the court
under the old, and the gentleman himself w^ould
not pretend to say that the proceedings of the
court in such case would be illegal or irreg^alar.
The salary of the President is brought into view.
I have never heard these gentlemen before com-
plain that it was too high ; if it is, I am perfecdy
willing to join them, and diminish it to what shall
be deemed only an adequate compensation for
services actually rendered, for the next Presiden-
tial term ; sooner, the Constitution will not author-
ize its reduction.
To complete the scene, we were told of the
sword, of civil discord, and of the sword of bro-
ther drawn against brother. Why such declama-
tion ? Why do we hear of such thinss on this
floor ? It is for them to tell who use the expres-
sions ; to me they are too horrid to think of. Do
gentlemen appeal to our fears rather than to oar
understanding ? Are we never to be clear of these
alarms ? They have often been tried without pro-
ducing any effect. Every instrument of death is
dragged into this question : sword, bayonet, hatch-
et, and tomahawk ; and then we are told that the
passing this bill may be attended with fatal con-
sequences to the women and children. Can it be
possible, sir. that the gentleman was really serious
when he talked about an injury to women and
children ? He also tol/i us, if you pass the bill
and it should produce a civil war, not only him-
self but many enlightened citizens would support
the judges. And have we already come to this,
that enlightened citizens have determined on their
side in case of a civil war. and that it is talked of
in this assembly with deliberation and coolness?
We certainly were not sent here to talk on such
717
HISTORY OF CONGRESS.
718
February, 1802.
Judidai-y Syalevu
H.opR,
topics, but to take care of the affairs of the na-
tion, and prevent such evils. In fuct, it is our
duty to take care of the nation, and not destroy it.
Conapare this with the conduct of the former mi-
nority. I challenge them to show anything like
it in all their proceedings. Whenever we sup-
posed the Constitution violated, did we talk of
civil war ? No, sir ; we depended on elections
as the main corner-stone of our safety ; and sup-
posed, whatever injury the State machine might
receive from a violation of the Constitution, that
at the next election the people would elect those
that would repair the injury, and set it right again ;
and this in my opinion ought to be the doctrine of
us all ; and when we differ about Constitutional
points, and the question shall be decided against
nsy we ought to consider it a temporary evil, re-
membering that the people possess the means of
rectifyingany error that may be committed by us.
Is the idea of a separation of these States so
light and trifling an affair, as to be uttered with
calmness in this deliberative assembly? At the
very idea I shudder, and it seems to me that every
man ought to look on such a scene with horror,
and shrink from it with dismay. Yet some gen-
tlemen appear to be prepared for such an event,
and have determined on their sides in case it should
happen. For ray part, sir, I deplore such an event
too much to make up my mind on it until it shall
really happen, and then k must be done with
^reat hesitation indeed. To my imagination the
idea of disunion conveys the most painful sensa-
tions; how much more painful then would be the
reality \ Who shall fix the boundaries of these
new empires, when the fatal separation shall take
place? Is it to be done with those cruel engines
of death that we have heard of, the sword, the
bayonet, and the more savage instruments of tom-
ahawk and hatchet ? And is the arm of the bro-
ther to plunge them into the breast of brother,
and citizen to be put in baftle array against citi-
zen, to make this separation which would ruin the
whole country ? And why is all this to be done ?
Because we cannot all think alike on political
topics. As well might it be said, because we can-
not all agree in the tenets embraced by each par-
ticular sect of our holy religion, because one is a
Calvinistand another a Lutheran, that each should
be employed in plunging the dagger into the heart
of the other. But suppose, sir, you agree to divide
these States, where is the boundary to be ? h. it
to be a river, or a line of marked trees? Be it
which it may, both.sides must be fortified, to keep
the one from intruding on the other ; both thanew
Grovernments will have regular soldiers to guard
their fortified places, and the people on both sides
must be oppressed with taxes to support these
fortifications and soldiers. What would become,
io such a state of things, of the national debt, and
all the banks in the United Slates? If we do
wrong by adopting measures which the public
good does not require, the injury cannot be very
tasting; because at thie next election the people
will let us stay at home, and send others who will
manage their common concerns more to iheir sat-
isfaction. And if we feel power and forget right,
it is proper that they should withdraw their con-
fidence from us; but let us have no civil war;
instead of the arguments of bayonets, &c., let us
rely on such as are drawn from truth and reason.
Another topic has been introduced, which I very
much regret: it is the naming of persons who
have received appointments from the late or the
present President. I hope I shall be pardoned for
not following this example. And one gentleman
is named as having been an important member
during the election of President by the late House
of Representatives. It ought to be remembered
there were others as important as the gentlemaa
named. In talking about the late or the present
President, it ought not to be forgotten that they
both signed the Declaration of Independence, that
they have both been Ministers io Europe, and
both Presidents of the United States. Although
they may differ in political opinion, as many of us
do, is that any reason we should attempt to de-
stroy their reputation? Is American character
worth nothing, that we should thus, in my judg-
ment improperly, attempt to destroy it on this
floor ? The people of this country will remem-
ber that British gold could not corrupt nor Brit-
ish power dismay these men. I have differed in
opinion with the former President, but no man
ever heard me say, that he was either corrupt or
dishonest ; and sooner than attempt to destroy the
fame of those worthies, to whose talents ana ex-
ertions we owe our independence, I would cease
to be an American ; nor will I undertake to say
that all who differ from me in opinion are disor-
ganizers and jacobins.
We have heard much about the document No.
8, sent to this House by the President, and are
told that it is not correct. Admit everything
which has been said about it, and does it amount
to anything like the least invalidating it? No, it
only shows a clerical error of no importance, and
it must be agreed to be sufficiently c<irrect to prove
the inutility of the late system. The gentleman
from South Carolina told us, that many learned
men who agreed with us generally in politics, dif-
fered with us on the present question. This I
never heard before; but, suppose the fact to be so,
it unquestionably proves that with us each man
makes up his own opinion for himself. He told
us of one, who had lately held a high ofiice under
the federal Government, who had. when in office,
made a report, a part of which was directly against
our opinion^ and that he was high in the ranks of
the opposition. The opinion of that gentleman
formerly given is nothing more than this, that he
at that time thought the then Judiciary system
might be amended. From the rank which ne as*
signed to the author of the report, he is certainly
much better acquainted with the opposition than
I am. He included, among those who differed
with us on the question, atid who generally agreed
with us, all the judges of Virginia. I am not ac-
quainted with but few of these gentlemen, and do
not know anything of the political sentiments of
those with whom I am not acquainted; but if the
few with whom I am acquainted differed with us
in opinion, they would not esteem us the more for
719
HISTORY OF CONGRESS.
720
H. OP R.
Judiciary System,
Febrdabt, 1802.
relinquishing an opinion before we were convinced
il was erroneous. But. sir, judsjing from a pamph-
let which has been read during this debate, and
said to contain their opinion, it is clear to my
mind, that we perfectly agree. The same gentle-
man read to the Committee a part of a lecture of
one of the judges of Virginia, which, if it strength-
ened his opinion on the present question, ought to
-convince him thdtt the Sedition law was unconsti-
tutional. And what will he say to the opinion of
the same judge, on the favorite doctrine that the
common law of England is in force in the United
States? He told u^ by passing the bill we shall
not save more than the small sum of $5,000. Here
he and my colleague (Mr. Stanley,) differ a lit-
tle in opinion. My colleague thinks the saving
will be somewhere about $40,000, though not a
dust in the balance. Sir, I would vote for the bill,
on the principle of economy, if it would only save
the useless expenditure of $1,000 of the public
money. Let it be remembered that public money-
in all countries is drawn from the sweat of the
people.
The same gentleman also told us, that we ought
to keep up these courts to convince the nations of
Europe of the stability of our Government; to
look respectable abroad. Sir, the public good
alone shall be the principle by which I will always
govern myself, without considering what the peo-
ple of Europe may think. I will never consent
to keep up what I deem useless and expensive es-
tablishments, merely because it may make us look
respectable abroad, or to convince the people of
Europe of the stability of our Government. Nor
can I believe that the passing the bill, which is
altogether an internal regulation, can affect our
national character in Europe; it is one of those
internal regulations that the Governments of Eu-
rope care nothin? about. All that independent
nations require of each other is, that they govern
themselves with honesty and equity towards other
nations.
The gentleman asked us to show him the clau-
ses in the Constitution which authorize the repeal
of the late Judiciary act. I will answer this ques-
tion, by asking another: Can he show any clause
in the Constitution which gives express and direct
authority to repeal any law? He cannot; there is
no such clause. But the authority given to pass
laws, gives also the authority to repeal, except in
cases named, where you are expressly forbid, and
this is not a torbidden case. The whole authority
to repeal is an implied one; you mav establish
post offices and post roads, you may establish courts,
and if you can repeal the one, you may repeal the
other.
The same gentleman says, if you pass the bill,
you make the Judiciary dependent on a faction.
Who is the faction, sir, the majority or the mi-
nority? Formerly, I have heard it in said this
House, the majority was the nation, and the mi-
nority a faction ; and has the meaning of these
words now changed? This the gentleman did not
tell us.
He also told us, there were but two ways of
governing; one by the Judiciary and the other
by the bayonet. Sir, we are so daily in the habn
of hearing of all the instruments of death, than
stranger would suppose no other articles were
manufactured or used in the United States, aod
that it was a standing order of the day to be toJd
of them; and it is a little extraordinary, that most
of the gentlemen who have spoken on the other
side, have reminded us of them. Power, says tke
gentleman, in whatever hand»it may fall, w^ill be
abused. I hope that he is mistaken, and that tioie
will convince him of his error; but if it should be
so, no one in this country will hold power long,
because there is a peaceaole corrective in the na-
tion, the application of which is perfectly wdl
understood, and is, in my opinion, a soverelgo an-
tidote to prevent this abuse. I mean a remedy to
which I have often already referred the gtBtle-
man ; it is an answer of itself to almost everyiiiing
that has been said — I mean elections. These gen-
tlemen seem to depend on threats and bayonets.
We always had a better dependence; it was elec-
tions and the good sense of the people; and these,
it seems to me, is what every true republican ought
to depend on, in a country where the people woold
as soon change a President as a constable for doing
wrong.
Do gentlemen expect to affright us by the coa-
stant cry of terror, or do they intend to prepare
the nation for civil war. and all the e^ils con»-
quent to such a state of things? If such be their
object, let me tell them they will find themselves
mistaken in both respects; they will not deter a;
from doing what we think ought to be done; and
if all Congress were to join, they could not pro-
duce a separation of the States : the people woold
lauffh to scorn all those who should wickedly
make the attempt ; they would say to thenx, ia
language not to he misunderstood. We gave yoQ
no authority to divide us from our brethren, we
are determined never, to fight them, let you deter-
mine what you may. Instead of fighting onr
neighbors, we will hold elections, and send more
faithful men to fill the places you have disgraced.
It is rung in our ears from all quarters, that we
shall destroy the Constitutional divisions of the
departments by passing this bill. The Leg-islatire.
the Executive, and Judicial, will all be unhinged
by keeping them exactly in the same situation they
have been for twelve years ; and to add to all the
other mighty charges, we are told, that we are
about to repeal the law because the judi*es do not
agree with us in political opinion. This could
scarcely be thought to have much weight, if the
gentleman will reflect that six judges are qnite
enough to sound the tocsin, whenever there shall
be danger that the other departments are about
to invade the liberty of the people ; or is it neces-
sary to keep up these new judges to prepare the
people for this terrible work of plunging the
bayonet into the breast cf their nearest kinsnun
or neighbor? Whatever may be the opinion of
the judges lately appointed in other States. I
hope 1 may be permitted to state, that the judge
appointed in North-Carolina does not disagree
with us in politics; and if a sincere and disinter-
ested friendship for a worthy man, whom I have
721
HISTORY OF CONGRESS.
722
FfiBRUART, 1802.
Judiciary System.
H. OP R.
known from his infancy; and who left a lucrative
practice, when he took a seat on the hench, could
influence my rote, I should certainly vote against
the passage of the bill. But« sir, shall friendship,
shall respect for a worthy man, induce us to give
a vote which we know to be wrong? Were it
possible, we should not only despise ourselves,
but every man of worth ana candor would also
despise us.
Mr. Chairman, it was my intention when I rose,
to hare examined more particularly the Consti-
tutional ground which the gentlemen on the oth-
er side have taken; but as I most cordially agree
in the opinion delivered on this subject, hy a very
respectable member from Massachusetts, (Mr. Ba-
con,) and as I also agree with the gentleman from
Virginia, (Mr. Giles,) it -would be needless to take
up the time of the Committee in repeating argu-
ments which have been some days delivered and
remain yet to be answered.
I beg pardon of the Committee for the time I
have occupied — I did not expect to have detained
them so long, but the importance of the suhject,
and the wide field into which it has been branched
by those who preceded me, will be my apology.
The further consideration of the bill was then
postponed till to-morrow.
Wedn E0DAY, February 24.
A memorial of sundry merchants and under-
writers of the City and State of New York, was
presented to the House and read, praying relief in
the case of the capture and condemnation of cer-
tain vessels and their cargoes, of which the memo
rialists are owners or assurers, by the cruisers and
courts of the French Republic, during the late
European war. — Referred
A Message was received from the President of
the United States, communicating a report of the
Secretary of the Treasury on the subject of Ma-
rine Hospitals, which appear to require Legislative
attention; also, information respecting the situation
of seamen and boatmen frequenting the port of
New Orleans, and sufTerinff there from sickness,
and the want of accommodation. The Message
and documents accompanying it, were read, and
ordered to be referred to the Committee of Com-
merce and Manufactures.
Resolved^ That a committee be appointed to
bring in a bill to alter the time of holding the Dis-
trict Court of Maine.
Ordered, That Mr. Wadswortb, Mr. Cabell,
and Mr. Van Ness, be appointed a committee,
pursuant to the said resolution.
JUDICIARY 8T8TEM.
The House again resolved itself into a Com-
mittee of the whole House on the bill sent from
the Senate, entitled ^An act to repeal certain acts
respecting the organization of the Courts of the
United States, and for other purposes."
Mr. GooDARD. — Mr. Chairman, the bill on your
table having been so long before the Committee,
and the principle of the first section, now under
consideration, having been so fully and ably dis-
cussed, that I should content myself with a silent
vote, if the subject was of less importance. To
this course I should be more inclined, as gentle-
men on the other side of the House have already
expressed an opinion that nothing new could be
offered to the Committee, and manifested an un-
easiness that the debate should be further pro-
tracted.
But, sir, the man who deems' this subject as im-
portant as I do — as one involving the dearest and
best interests of our common country — will seek
rather for an apology for silence than for speaking.
Before I enter upon a distinct consideration of
the two questions involved in this discussion, I
hope the Committee will pardon me for adverting
to the history of this bill in this House. When
the bill first came from the Senate, a motion was
made to refer it to a select committee, which had
been appointed in this House on the subject of
the Judiciary system of the United States. That
motion I then supported, with an anxious hope
that it might prevail. The gentleman from Vir-
ginia. (Mr. Giles,) being chairman, and myself a
member of that committee, I felt extremely soli-
citous there to meet — to lay aside all party feel-
ings or prejudices; to banish all considerations,
when or how the act now proposed to be repealed,
was passed ; to confine ourselves to the inquiry
whether the existing system does not afford to the
citizens of the United States a fairer chance to
obtain prompt and speedy justice in their courts,
than the former system now proposed to be re-
vived. But, sir, the chairman of that committee
then told us, that a great Constitutional question
had been raised; that such questions were im-
proper for the consideration of select committees ;
that a fortunate period had arrived for its discus-
sion ; that it was proper to be considered only in
Committee of the Whole ; and that it must be
decided.
On a subsequent occasion, when a motion was
made to postpone the consideration of this bill to
a future day. the solicitude which I had felt to
avoid an unnecessary decision of the fatal ques-
tion was revived; my dormant hopes returned,
fortified by petitions from respectable sources, in-
forming us that the present organization of the
courts, in one circuit at least, was not only supe-
rior to the old system, but absolutely necessary to
the attainment of justice in that circuit. Ani-
mated with a hope, excited by those petitions;
deeply impressed with a sense of the dangerous
and deadly blow which I then was, and still am,
persnaded the repeal of this law will give to the
Constitution, I then expressed a wish, which, al-
though it drew upon me from one gentleman a
charge to delay and embarrass the business of the
session, was the honest effusion of my heart ; that
an opportunity might still be given to ascertain
whether the act proposed to be repealed is not
what its title imports: "An act for the more con-
venient orjninization of the courts of the United
States." That our inquiries might still be con-
fined to that question, and if the result of such
inquiries should prove to us that the courts as or-
ganized by the act, now proposed to be repealed,
723
HISTORY OF CONGRESS.
724
H. OP R.
Judiciary System.
Febrdaby, 1802.
were throughout the United States what these
petitions prove them to be in the third circuit : an
useless — a dangerous discussion of the Constitu-
tio/ial question might be avoided. We were then
told, sir. by another gentleman from Virginia,
(Mr. Rai«dolph,) that a great Constitutional ques-
tion had been raised, (raised let me add by the
fentlemen who support the bill,) and that it must
e decided. That gentleman then told us what
that question was, '^ Whether the Judiciary is a
co-ordinate or subordinate branch of our Qovern-
ment?" Defeated in boih these attempts, we
are at length brought to a consideration of the
important principles of the first section of the bill
on your table.
After the repeated declarations of the two gen-
tlemen fi'om Virginia, that the great Constitu-
tional question must be decided, although in doing
it a judicial establishment may be abolished,
which is necessary to the administration of jus-
tice, those who oppose the passage of the bill
might be excused from making any remarks on
the question of expediency. Yet, sir, lest silence
on that question should, by some others, be con-
strued into an admission that the new system is
not preferable to the old, now to be restored, I
will take the liberty to submit a few remarks on
that question.
I am induced to believe that there must exist
between the several gentlemen from Virginia,
who have spoken on this subject and myself,
some radical difference of opinion as to what is a
due administration of justice in courts of law.
One gentleman from Virginia (Mr. Thompson)
expressed his astonishment at what he was pleased
to call, this immense establishment. To prove its
inutility, he declared that he came from a State
where justice was "truly and speedily" adminis-
tered, and produced to the Committee a document
to show that there are now pending before a court
in that State, in which only one old man sits as
judge, no less than two thousand six hundred and
twenty-seven causes undecided.
On a former occasion, which has been alluded
to, I took the liberty to suggest, as a reason for
confining ourselves to an inquiry into the expedi-
ency of the measure only, that the organization
of the courts, as it now exists, was calculated to
carry justice home to every man's door; another
gentleman from Virginia declared that to be the
very reason why he should vote for the repeal of
the law, intimating that we had too much Fede-
ral jubiice. I must believe that those gentlemen
take, as the basis of their opinions, the position,
that suits at law are evils in community, and in-
fer that the organization of courts, which is best
calculated to deter citizens from applying to them,
is the best. Hold out to the citizens a prospect
of an endless continuance of the evil, and they
will not involve themselves in it.
For, sir, what prospect of justice can that sui-
tor promise himself who sees that two thousand
six hundred and twenty-seven causes, which have
been accumulating for ten or twelve years, must
be decided before his can be attended to? This
administration of justice may suit the state of
society in Virginia, but it is not such as the people
of the United States meant to provide for them-
selves under that happy form of Grovernment
which they have adopted. In looking into the
sixth article of the amendments to the Constitu-
tion, which have been adopted by the people, I
find this expression of the public will, " In all
criminal prosecutions the accused shall enjoy the
right to a speedy and public trial," dbc. If, sir,
the old system is to be revived, what, let me aik^
will be the condition of persons accused of crimes?
And who may not be accused? It is acknowl-
edged by those who advocate the repeal of this
law, that under that system, owing to the vast dis-
tance which judges were obliged to travel, the
rising of rivers, impassable roads, and vahoas in-
evitable accidents, judges could not, and frequent-
ly did not, arrive in time to hold a court. The
same thins, owing to the same causes, 'will hap-
pen hereafter. What will be the consequence?
Persons accused of crimes and confined in your
jails to await their trials, must continue perhaps
in the confinement of a dungeon six months longer
before they can have an opportunity of having
their guilt or innocence ascertained l>efore a court
of law. What, under this system, becomes of the
right of the accused to a speedy trial, sacredlj
guarantied to him by the Constitution? If inno-
cent, you punish him; if guilty, you inflict a dou-
ble punishment, one before, and one after convic-
tion. This consideration alone, in a free country,
ought to outweigh all arguments arising from the
trifling additional expense to which we are sub-
ject by the act proposed to be repealed. But bow-
ever important the speedy administration of jus-
tice in criminal prosecutions, that alone was not
all which the citizens intended to secure to them-
selves when they adopted this Constitution. The
speedy administration of justice in civil actions
was tnen deemed important. The Cooventioo of
the State of Virginia, when this Constitution was
adopted, proposed certain amendments to it, and.
among others, a bill of rights. In that bill of
rights I find the twelfth article expressed in this
manner: "That every freeman ought to find a
^ certain remedy, by recourse to the laws, for all
' injuries and wrongs he may receive in bis per-
' son, property, or character. He ought to obtaia
^ right and justice freely, and without sale; com-
' pletely. and without denial; promptly, and with-
* out delay; and that all establishments or regula-
' tions, contravening these rights, are oppressive
* and unjust." The Coiivention of North Caro-
lina, copying after Virginia, adopted precisely the
same amendments. Both those States then
thought, that all establishments or regulations con-
travening the right of obtaining justice, promptly
and without delay, were oppressive and unjust.
Those amendments were proposed to the Consti-
tution of the United States, and regarded the
attainment of justice in the courts of the United
States. Those States^ then, were not afraid of a
too prompt administration of federal justice. Now
a system, which has confessedly been found to
prevent courts from being holden, and to postpone
suitors from term to term without trial, and which.
725
HISTORY OF CONGRESS.
726
February, 1802.
Judiciary System.
H. opR.
from the very natare of its organization, will
often produce that effect, is to be restored; and
one which all agree is calculated to insure a
speedy trial, is to be abolished. I am not disposed
to dwell long upon this subject, not having been
a member of this House when the act now to be
repealed passed. But, sir. when I heard the ob-
jections to the old system, and the advantages of
the new one, so fully stated by the gentleman from
Delaware, (Mr. Batard.) when I found that the
plan of separating entirely the supreme from the
circuit courts originated as early as the year sev-
enteen hundred and ninety, and was then recom-
mended to Congress by the then Attorney Gen-
eral, (Mr. RANDOLPn,) as appears by his report,
read yesterday by the gentleman from South Car-
olina, (Mr. Ht7GER;) when, as that gentleman has
truly observed, the document before us contains
only the business done by the judges of the su-
preme and district courts in the circuit courts,
and not the business of their own particular courts
also; when I reflect on the appellate jurisdiction
of the Supreme Court, and the extreme absurdity
of subjecting, in another place, the determina-
tions of the same men to the revision of them-
selves, might I not rationally indulge the hope
that gentlemen would have been satisfied, that the
Judicial establishment, as it now exists, does fur-
nish to the citizens a much fairer chance for the
attainment of justice than the old one? and that
they would have permitted the Constitutional
question to have slept for the present? But, sir,
we are compelled to consider whether the bill on
your table can pass without a violation of the Con-
stitution. Before other considerations are attended
to, I hope I may be permitted to present to the
Committee one argument, derived from the pro-
gress of the bill itself. A gentleman from Mas-
sachusetts, (Mr. Bacon,) told us some days past,
that, on this subject, the Constitution speaks a
plain and intelligible language. Let me inquire
where gentlemen have found this plain and intel-
ligible language. One gentleman, taking for
granted the position to be proved, and reasoning
ab inconveniently has founa it in the evil conse-
quences, resulting from establishing a different
doctrine: — "an army of unimpeachable judges,
with salaries, and without offices."
Another has found it. in a distinction between
supreme and inferior courts, derived from .the
words " may" and "shall." Another, in the words,
''from time to time." Another, in that clause
of the Constitution, which authorizes Congress to
establish tribunals inferior to the Supreme Courts
supplying the word abolish^ omitted by the Con^
yention which framed the instrument. Another,
in a discoveryp that misbehaviour is no crime in
a judge,for which hecan be impeached; and there-
fore the Legislature must, ex necessitate rei, pos-
sess the power of removing judges from office.
Another has found the language in ^* the will of
the people," not literally expressed in their written
Constitution, but in their elections, in a change of
rulers ; believing, I presume, that the voxpopidi
is vox del, and that human, must yield to divine
laws and constitutions.
Another has found it in the tyranny which will
be established, if you suffer the judges to test the
laws by the Constitution. Another, in the words
" to promote the welfare," in the preamble to the
Constitution. Another, in an exposition of the
word ** hold." connected with that clause of the
Constitution, which authorizes the President to
grant commissions.
And last of all, the gentleman from Vir^nia,
(Mr. R.) abandoning all these, has found it in the
^^quo animo^" as he expresses it. with which you
give your vote: erecting in every man's mind a
tribunal before which to test the constitutionality
of measures. The doctrine is — believe that you
do not violate the Constitution, and it is not vio-
lated ! This last position, whatever its merits, has
not novelty to recommend it. ''Asa man thinketh,
so is he," has been taken for the basis of many false
speculations before this time. Instead of nnding
this plain language in any one part of the Consti-
tution, ought not the various grounds which have
been taken by the friends of the bill, to teach gen-
tlemen to distrust the soundness of the doctrine
which they wish to support ? Shall I be told, in
answer to this, that those who oppose the oill
have taken grounds as various in their opposition
to it? No, sir, we uniformly groiftid our argu-
ments on two plain and unequivocal sentences in the
Constitution: "The judges both of the superior
' and inferior courts shall hold their offices during
' good behaviour ; and shall receive for their ser-
' vices a compensation, which shall notbediminish-
* ed during theircontinuance in office." Those who
oppose, are indeed obliged to follow those who
support the. bill, in their devious course ; and find
arguments to answer the constructions, by which
these words, which are truly plain and intelligible,
are attempted to be done away. Buthaving been
apprized by the gentleman from Virginia, that the
great Constitutional question to be decided is,
whether the Judiciary is a co-ordinate or subor-
dinate branch of our Government ; and whether
it is competent for the courts to decide upon the
constitutionality of laws; and this bill having
been broufi^ht forward at a period, which gentle-
men .are pleased to call fortunate for that purpose,
I hope I shall be excused for requesting the atten-
tion of the Committee for a few moment.*? to this
question. One gentleman, from Virginia, (Mr.'
Randolph) having said he was not disposed to
contend about the terms co-ordinate and subordi-
nate, I am willing to substitute others. Is the Ju-
diciary a distincfand independent branch of the
Government, ordained and established by the Con-
stitution as such ? In examining this question, I
may be permitted to inquire, whether it is compe-
tent for the judges to pronounce on the constitu-
tionality of your laws. One gentleman from Vir-
ginia (Mr. Giles) seemed disposed to waive this
inquiry, probably in consequence of the sentiments
of a different kind, avowed by his friend from
Massachusetts, (Mr. Bacon,) yet it deserves to be
considered ; and that gentleman could not suffer
it to pass in silence, but charged the claim of such
power to the judges as one of their crimes.
Although proving this, does not, I admit, prove
727
HISTORY OF CONGRESS.
725
H. OP R.
Jvdiciary System,
February. 1602.
that the judges of our courts are, byr the Consti-
tution, rendered independent of the Legislative
power ; yet it furnishes a strong reason for giving
to that instrument, if it will bear it, such a con-
struction as will make them so. Judges depend-
ent on the Legislature for their continuance in
office, for the continuance of their offices, or for a
continuance of their salary, cannot be expected to
decide against the wishes of those on whom they
depend. Gentlemen ask, where we find in the
Constitution a power given to the judges to de-
cide a^inst the constitutionality of laws? I an-
swer, m the sixth article, these words : " This
' Constitution and the laws of the United States,
' which shall be made in pursuance thereof, and
^ all treaties made, or which shall be made, under
^ the authority of the United States, shall be the
' supreme law of the land." The judges are not
only sworn to support the Constitution, but their
oath of office binds them to judge " agreeably to
the Constitution and the laws." The expression,
" supreme law of the land," imports inferior and
subordinate laws. What are those laws, unless
acts of Congress? The expression respecting
laws made pursuant to the Constitution, necessa-
rily implies that laws may be made which will
not be pursuant to that instrument. Such are not
the supreme law of the land. They are not law.
Shall not the judges when called upon to decide
if, in their opinion, a bill should be passed by
Congress a&;ainst the Constitution which assumes
the form of a law, declare it, I will not sav null
and void, if gentleman dislike those terms, out to
be no law? — not being made pursuant to the
? tower delegated to Congress by tne Constitution,
n the case of Van home vs. Dorrance, decided in
the circuit court for the district of Pennsylvania,
reported in DaUas^s Reports^ Judge Patterson is
made to say :
<* What is a Constitution 1 It is the form of Gov-
ernment delineated by the mighty hand of the people,
in which certain first principles of fundamental laws
•re established. The Constitution is certain and fixed ;
it contains the permanent will of the people, and is the
supreme law of the land ; it is paramount to the power
of the Legislature, and can be revoked or altered only
by the authority that made it. The life-giving princi-
ple and the death-doing stroke, must proceed fit>m the
same hand. What are Legislatures? Creatures of
the Constitution ; they owe ^eir existence to the Con-
stitution ; they derive their power from the Constitu-
tion; it is their commission; and therefore all their
acts must be conformable to it, or else they will be void.
The Constitution is the work and will of the people
themselves in their original, sovereign, and unlimited
capacity. The one is the work of the creator and the
other of the creature. The Constitution fixes limits to
the exercise of Legislative authority, and prescribes the
orbit within which it must move. In short, the Con-
stitution is the sun of the political system around which
all Legislative, Executive, and Judicial bodies must re-
volve. Whatever may be the case in other countries,
yet in this there can be no doubt that every act of the
Legislature repugnant to the Constitution is absolutely
void."
In another part of the same case, the same
Judge, speaking of an act of the Legislature di
Pennsylvania, upon the constitutionality of which
he was then deciding, says:
" If this be the legislation of a Republican GoTcro*
ment, in which the preservation of private pv^pertj ii
made secure by the Constitution, I ask, wherein it dtf>
fers from the mandate of an Asiatic Prince 1 Omai-
potence in legislation is despotism. According to thk
doctrine, we have nothing we can call our ovm, or an
sure of for a moment ; we are all tenants at will, aid
hold our property at the mere pleasure of the Legbb-
ture. Wretched situation, precarious tenure! Aad
yet we boast of property and its secnrityy of laws, ti
courts, of constitutions, and call ourselves free !"
Before I lay aside this case, I will take the lib-
erty to read the remarks of the same Judge, re-
specting the tribunals of justice :
" The rights of private property are reg^atad, pro-
tected, and governed by genera], known, and estabhdi-
ed laws, and decided upon by general, known, and es-
tablished tribunals — laws and tribunals not made and
created on an instant exigency, or an urgent emergcs-
cy, to serve a present term or the interest of a momeni.
Their operation and influence are equal and universaJ;
they press alike on all. Hence security and saferr,
tranquillity and peace. One man is not mfivid of an-
other, and no man afraid of the Legislature."
In another case, reported in the same book.
Judge Iredell, speaking of Congress, says :
" Upon this authority, there is, that I know, but one
limit, that is, that they shall not exceed their authority.
If they do, I have no hesitation to say that an act to thai
efiect would be utterly void, because it would be inooo-
sistent with the Constitution, which is a fundameniai
law, paramount to all others, which we are not saiy
bound to consult, but sworn to observe."
In the case of Bull and wife against Calder and
wife, as well as in several other cases, the same
doctrine is maintained by the Judges of the Su-
preme Court. And, sir, it is to this doctriae that
we owe our liberty — which consists in security to
our persons, our property, and reputation. And
will the gentleman froni Virginia impute the
maintaining of this doctrine to the ja<^^es as a
crime ? Is this the question to be decided ? Are
we to show our control over the courts, to rep^
this law, and put the judges down 1 Let it be re-
membered that, in these decisions, the judges
wei;e not ^^ claiming powers," as the gentleman
from Virginia has been pleased to express it« boi
solemnly deciding between citizen and citizen, the
rights of private property. And let us arrogate
to ourselves as much wisdom as we please, who.
let me ask, are most competent to decide correctly
important questions arising under the Coostita-
tion, our judges or our legislators? Le^shatnres
will, in violent times, enact laws manifestly on-
just, oppressive, and unconstitutional; and'thaL
too, under the specious pretext of relieving the
burdens of the people. Such laws, it is the hasi-
ness of the judges, elevated above the influence of
party, to control. Let me mention an instaoee:
rrevious to the adoption of this Constitution, and
during the time of the paper-money system oif the
State of Rhode Island, an act was passed by the
729
HISTORY OF CONGRESS.
730
February, 1802.
Judiciary System.
H. OP R.
Legislature of that State, sabjectiog to a penalty
siny person who should refuse that money, then in
a very depreciated state, for articles offered for
sale in the market ; and a new and summary mode
3f prosecution and trial was provided. The mo-
ney was offered to a butcher in the market for his
[neat ; it was refused. An action was brought to
'ecover the penalty, and I now see in his place an
ionorabie member of this House, then a judge of
the svpreme court of that State, who concurred
with the rest of the judges of that court in declar-
ing the law to be unconstitutional and void.
The consequence was, that the judges were
summoned to appear immediately before the Le-
jrislature to answer for their conduct, and it was
with the greatest difficulty that the Legislature
were prevented from dismissing them mstantlv
From office. I mention this to show, that such
las been, and such will be, the conduct of Legi»-
ative bodies. Such ought always to be the con-
luct of Judges, and this can with certainty be
effected m no other way than by rendering tnem
ndependent of the Legislature, subject only to
-emoval by impeachment. But, sir, I hee leave
igain to recur to the amendments which were
)roposed bv certain States to the Constitution, at
he time or its adoption, to show what was the
lense of those States, at that time, on the import-
ince of the Independence of the Judiciary to the
iberties of the people of this country. In the
leclaration of rights proposed by the Convention
)f the State of Virginia, I find the fifth article is
n these words, ^^ that the Legislative, Executive,
and Judiciary powers of Government, should be
separate and distinct, and that the members of the
two first may be restrained from oppression by
feeling, and participating in, the public burdens,
they should, at fixed periods, be reduced to a pri-
vate station, return into the mass of the people,
and the vacancies be supplied by certam and
regular elections." Then, sir, the doctrine of
;he responsibility of the juds^es to the will of the
people, did not prevail m Virginia. It was not
;hen thought necessary that the judges should
'eturn to tne mass of the people, to restrain them
Irom oppression. The Convention of the State
)f North Carolina recommended a bill of rights
is an amendment to the Constitution, containing
>recisely the same words ; and to render the judges
18 independent as possible, the convention of each
)f those States recommended also an amendment,
hat the salaries of the iudges should neither be
ncreased nor dimf nished during their continuance
n office. Who, then, can say that a limitation of
khe Legislative power was not intended by those
who adopted the Constitution ? and, sir, it was in-
tended hy those who framed the Constitution.
Grentlemen admit that the words in the first sec-
tion, article third, of the Constitution, *^The
judges, both of the supreme and inferior courts,
shall hold their offices during good behaviour,
and shall, at stated times, receive for their sei^
vice a compensation, which shall not be dimin-
ished daring their continuance in office," were
lesi^ed to secure the independence of the judges
while in the exercise of their official duties, as
long as the office continues. Let me ask gentle-
men, if. upon their construction, that you may
abolish the office, this end is really attained ? In
what consists the independence of a judge ? It
consists in having his mind elevated above the
fear of any evil consequence resulting to him
from rendering upright and impartial judgments ;
in his being so situated as not to have his mind
wrought upon, directly or indirectly, by any other
considerations than those arising from the justice
of the cauises which he is about to decide. Con-
sidering the infirmities of human nature, the
framers of the Constitution supposed it necessary,
in order to secure an administration entirely im-
partial, that the iudge should know that, let him
decide as he will, provided he acts honestly, he
shall not be deprived of his office, nor sufier a
diminution of his salary.
Here, let me ask, what difference in effect there
can be upon the mind of a judge, while in the
administration of justice, to know that, in conse-
quence of the decision wnicb he is about to make,
his office will be taken from him, or he taken
from his office? Will not the effect be precisely
the same in one case as the other? In either case
the office and the judge are separated from each
other. Upon the construction given to this part
of the Constitution by the friends to the bill, the
judge is not to be turned out of office, nor his sal-
ary diminished, lest his independence should be
impaired ; and yet he is to cease to exercise judi-
cial functions, and to cease to receive any salary
if he decides against the wishes of the Legisla-
ture— and still be independent ! If the Constitu-
tion meant to secure the independence of the
judges, while in office, let gentlemen apply to it
one rule of construction of instruments of writing;
so construe *^ut res magis valecU quam ptreaiP
And. then, let them ask themselves, if, upon their
construction, the end which they acknowledge the
Constitution had in view is attained ? But if the
gentleman from Virginia (Mr. Qiles^ can avoid
the first part of the sentence, ^ the judges shall
hold," dbc, by considering hold, as implymg ten-
ure under the President, and not operating as a
limitation upon Legislative power ; how does he
avoid the second : " They shall at stated times re*
oeive for their services a compensation which
shall not be diminished," &c. ? I am sensible it
has been attempted, by saying that compensation
is given for services rendered, and if you deprive
the judges of the power of rendering services, by
abolishing their offices, the compensation ceases
of course. But, I apprehend, you cannot entirely
dispense with his services, if you abolish the
court in which be ordinarily administers justice,
he may still grant commissions of bankruptcy,
issue judicial writs, and perform various other
services. To my mind the plain language of the
Constitution is this: Congress may "from time to
time," as the exigencies of the country, arising
fromits increasing population, growing commerce,
or other causes, snail require, ordain and estab-
lish such inferior courts as may be deemed neces-
sary. In the exercise of this power, the Constitu-
tion supposes that a sound diBcretion will govern;
731
HISTORY OP CONGRESS,
i62
H.ofR.
Judiciary System,
February, 1902.
that there will be no abuse of it. That, as the
country shall advance in population and wealth,
its situation may be such as to require more infe-
rior courts, but never less. That when courts are
once established, you may, if you please, alter,
modify, change, or transfer jurisdiction from one
court to another. But whatever is done upon this
subiect. must always be done with a sacred resrard
to the inviolability of the judges already in office:
and if you wish entirely to change the organiza-
tion of the courts, it can only be done when the
offices of the judges are vacant, or with reference
to the happening of that event. You cannot to-
tally divest a judge of all judicial authority or
diminish his salary, and thereby compel him to
resign his office ; nor deprive him both of office
and salary. Upon any^ other construction, the
provisions of the Constitution intended to secure
the independence of the judges, are not only inef-
ficient, but absurd. The word hold, itself, upon
which the gentleman from Virginia has predicated
his argument, supports this construction. It im-
plies an inseparable connexion between the person
nolding and the thing held, which can no more
be dissolved in one way than in another. All
means looking to that end are alike forbidden.
A gentleman from Massachusetts (Mr. Bacon)
has defined a court to be an institution for the
administration of justice; and said that he could
no more conceive of a court without a judge than
of a Legislature without legislators.
[Mr. Bacon explained. — He said he was not re-
sponsible for the definition, he took it from the
fentleman from Pennsvlvania, (Mr. Hemphill.)
le did not say "without judges, but without
offices." ]
Mr. GonDARD proceeded. I am not able to re-
collect the force of the gentleman's argument,
unless he meant to say that the abolition of a
court necessarily put down a judge. The gentle-
man quoted the twenty-seventh section of the act
of last session, which abolished circuit courts, as
a precedent in point to justify the repeal of tnat
law. But the abolition of a court does not neces-
sarily imply that a judge is put out of office, or
the office itself discontinued. Congress, by law,
erect courts, give names to those courts, and cre-
ate offices; but this same Justice cannot be ad-
ministered in them until anerwards, by an act of
the President, judges are appointed. The circuit
courts, as organized before the act of last session
were holden by judges of the Supreme Court,
assisted by district judges. Abolishing circuit
courts did not affect the judges of the Supreme
Court, or the district judges ; each remained in-
dependent judges, holding their proper offices. A
name of the institution is nothing, and I very
much question, whether the name of the Supreme
Court may not be changed. The Constitution, it
is true, has said that there shall be one Supreme
Court. It implies that there shall be one court,
supreme or superior to all others — but may it not
be called by what name you please? But it has
been said, upon the same principle that you can
withdraw from a court a part of its jurisdiction,
you may withdraw the whole, and leave a naked
judge, without any jurisdiction, following a sala-
ry; this does not follow. As I have before re-
marked, a judge may exercise many judicial fuDc-
tions without a court to sit in ; and I have alsc
remarked, that the power to erect new tribunals
from time to time, was always to be exercised
with sound discretion. The Constitution doci doi
go on the eround that it will be abused; that oev
courts will unnecessarily be erected ; that power
is no otherwise limited than bv enjoining upon
the Legislature, to do all which is done on ihii
subject with an eye to the independence of judfcs
already in office. To aid us, sir, in oar coostroc-
tion or the Constitution of the United States, 1
beg leave to turn the attention of the Committee
for a few moments to some of the Siate constitu-
tions. I believe we shall not only find, in manj
of them, the principle of the independence of the
Judiciary admitted; but, in some of them, ex-
pressly, the doctrine for which I now contend.
Some of the State constitutions existed intbeii
present form anterior to the adoption of the Coo-
stitution of the United States ; some have been
since amended. In the bill of rights prefixed tc
the constitution of New Hampshire, are 'these
words: **It is, therefore, not only the best policy.
' but for the security of the rights of the peopk
^ that the judges should hold tlieir office.^ so long
' as they behav^ well." In the constitution of that
State, under the head of the Judiciary power, are
these expressions: ^' The Greneral Court are hereby
^ empowered to make alterations in the power and
' juri.<:diction of the courts of common pleas, and
' general sessions of the peace, respectively; or if
^ they shall judge it necessary for the public good
^ to abolish those courts," dbc. Previons to the
adoption of this constitution, which was but a
revision of a former one, there existed in ih&t
State a Supreme Court, the judges of which, as
well as those of the inferior courts, held theii
offices during good behaviour.
The people of that State supposed it necessary
expressly to delegate to the Legislature the power
of abolishing in^rior courts, the judges of which
hold their offices during good behaviour, and for
that purpose, among others, amended tbeir coin
stitution. And, sir, delegating to the Legislaiart
the power of abolishing inferior courts, clearly im-
plies that the power of abolishing the Supreme
Court was withheld. Can, then, the Legislature
of New Hampshire repeal the law organizing the
Supreme Court of that State? Clearly not. In
the bill of rights, as well as in the constitution c:
Massachusetts, tne independence of judicial offi-
cers is provided for, and in the article which re-
lates to the Executive power, I find these expres-
sions: "as the public good requires that the Got-
' ernor should not be under undue influence of
' any of the members of the General Court, by a
* dependence on them for his support," dbc. ; then
follows a provision for an honorable salary to be
provided for him, also for the judges of the Su-
preme Court. I read this for the purpose of
showing that, if the public good requires that the
Governor should be elevated above an undue in-
fluence of the members of the General Court, it
733
HISTORY OF CONGRESS.
734
February, 1802.
Judidary System.
H.opR.
much more requires that the judges should be
above that influence. But, sir, I will not detain
the Committee by advertioe to all the State con-
stitutions, in which the independence of the Ju-
diciary department is establisned ; I will only no-
tice the expressions in that of New Jersey : " The
' judges of the Supreme Court shall continue in
< office for seren years." An act of the Legislature
of that State would be necessary to organize that
court. Can a subsequent Legislature repeal that
act before the expiration of seven years ? Can a
judge be said to continue in office after the office
is abolished ? I presume not. The Constitution
is imperative — he shall continue in office. Here
the word hold, implying tenure, is not used, and
yet the principle is precisely the same as that
adopted m the Constitution of the United States.
The difference consists only in the time for which
the office is held. In New Jersey, the time is
definite ; in the Constitution of the United States,
indefinite, until the happening of an event — the
misbehaviour of the judges. In many of the State
constitutions, provision is made for the removal
of the judges upon the joint application of both
branches of the Legislature, to the Executive.
Having these constitutions and the statute of 12th
and ]3ih William, which introduced that provision
in England, before them, the framers of our Consti-
tution chose to discard it, and proWdefor theremov-
al of judges only on impeachment of the House of
Representatives before the Senate, and a judgment
of that body, in which two-thirds must concur.
Gentlemen admit that, in England, the independ-
ence of the judges has ever been the pride and
boast of that country. That it has tended to the
preservation of the liberties of the people. But,
they say, upon our construction of the Constitu-
tion of the United States^ judges will be more
independent than they are in England. Suppose
it is admitted ; what follows ? Nothing, but that
the liberties of the people of this country are bet-
ter secured than in that. From the nature and
principles of the British Government, there is no
danger of the judges being removed but for mis-
behaviour. One branch of the Legislature of that
country being hereditary, the other elective, if the
judges decide uprightly, but against the wishes of
the popular brancn, the other branch will not
probably concur in a vote to remove them. If
they decide uprightly, but aeainst the wishes of the
hereditary branch, the other will not probably
concur in such a vote, and they can be removed
only upon the joint address of both branches.
Our Government bein^ more free, and wholly
elective, a mode that gives greater independence
to the iudges than that is adopted. No joint vote
of both branches of the Legislature can, in no
way, remove a judge or separate him and his of-
fice. A vole of the House of Representatives
may impeach ; a vote of the Senate, two-thirds
concurring, may remove. Several gentlemen, in
discussing this subject^ have ^one very far from
the question before us, in bringing into view mat-
ter foreign from the merits of the question. I
shall not attempt to follow them. But, sir. suffer
me for a moment to notice one charge wnich is
brought against the judges: They have attempted'
say gentlemen, to introduce the common law into
this country, and this gentlemen seem to consider
as a crime. I had, indeed, believed that the peo-
ple of this country esteemed the common law as
their privilege. In the seventh article of the
amendments which have been adapted to the
Constitution, it is expressly recognised, '4n all
' suits at common law, where the value in con-
^ troversy shall exceed twenty dollars, the right of
^ trial by jurv shall be preserved ; and no fact tried
* by a jury shall be otherwise re-examined in any
^ court of the United States, than according to the
^ rules of the common law." The people of the
State of Maryland esteemed it so important, as to
introduce a provision respecting it, into their bill
of rights, the third article of which declares, " that
^ the inhabitants of Maryland are entitled to the
' common law of England, and the trial by jury
^ according to the course of that law.'' But, sir, I
will not pursue this subject. Gentlemen have
told us that they are honest — that they have the
good of their country at heart ; that elections in
this country are always to be confided in ; that
the people will, by their votes, cure all the evils
which may be introduced. Let the motives and
views of gentlemen be ever so pure, I cannot but
shudder at a principle, which is calculated to
prostrate at the feet of one department of the
Government, another department co-ordinate with
itself— independent of it ; and unless gentlemen
can prove to me that there is something more
than human in the American character, I cannot
cease to fear the evils which will result from this
measure. Ought not gentlemen, at the moment
of the triumph of one party over another, to dis-
trust themselves ? The human mind is often influ-
enced by motives which it does not acknowledge,
even to itself. Hazael, when told that he would
set fire to the strong holds of Israel, and commit
other abominable crimes, exclaimed, "But what!
Is thy servant a dog, that he should do this great
thing?" But he went away and did the very things
which he thus spurned at. I do not believe that
gentlemen wish to introduce into this country the
orrid scenes which have lately passed in review
before us in France. But they are too recent and
too horrible to be soon forgotten. Too horrible,
indeed, to be mentioned.
Let gentlemen ask themselves if this measure
does not look the same way 1 There was a time
when the Brisotines in France were thought hon-
est, virtuous, and patriotic. They claimed from
the people unlimited powers ; confiding in them,
unlimited powers were granted. Let gentlemen
call to mind the time when, in that country, Le-
gislative, Executive, and Judicial powers were
exercised by the same persons ; let them remem-
ber the scenes, too dreadful to be repeated, which
flowed from the concentration of all the powers
of Government in one branch. And let them ask
themselves if we have no reason to tremble at
the consequences which may result from the in-
troduction of the same principle, by the passage
of the bill on your table ?
Mr. RuTLEDOE. — I have kept my seat, Mr.
735
HISTORY OP CONGRESS.
736
H. OF R.
Judiciary Syetem.
Fbbruart, 1803.
Chairman, until this late stage of the debate, un-
der a hope that the arguments of gentlemen who
advocated the passing of this bill would convince
me it is not unconstitutional ; but, after having
listened most attentively to them for many days,
I find the deep impression made upon my mind
that it attacks the very vitals of our Constitution,
has been fortified and extended instead of being
dismissed.
It is not necessary, sir, for me to call to your
recollection what was the situation of America
anterior to the formation of the present Govern-
ment. Our State Governments had proved to be
mere ropes of sand. Experience had shown the
Confederation to be miserably defective in all its
parts. Those evil times, when anarchy and jeal-
ousy distracted our State Governments, and clash-
ing interests threatened to break our Federal
Union, called all America to action. The people
of thi;$ nation summoned their wisest and best men
to meet in Convention, to form a Constitution
which should promote the lasting welfare of our
country, and secure the liberties their valor and
wisdom had won. The difficulty of the task was
fully equal to its importance.
In reviewing the histories of other Republics,
the Convention saw that, like the splendid shows
of a magic lantern, they had appeared and dis-
appeared in almost the same moment of time : as
had been observed by a celebrated writer, they
rose like a rocket and fell like the stick. Altnough
their existence had every where been transient,
yet it had been protracted wherever the institutions
of the country nad excited any kind of veneration
for its judicature. At Athens in particular, and
indeed throughout Greece, the liberties of the peo-
ple were for a season preserved by the respect felt
towards the august Court of Areopagus. Not-
withstanding the aspirins ambition of some of
the States, the intrigues of powerful demagogues,
and the general degeneracy of manners, yet, as
long as this venerable judicature was respected,
Greece continued free. As soon as it lost its in-
fluence the people lost their liberties. Taught,
by these examples, the value of a good judiciary,
the patriots who met at Philadelphia determined
to establish one which should be independent of
the Executive and Legislature, and possess the
SDwer of deciding rightfully and finally on con-
icting claims between them. The Convention
laid their hand upon this invaluable and protect-
ing principle; in it they discovered wnat was
essential to the securityand duration of free States ;
what would prove the shield and palladium of our
liberties; and they boldly said, notwithstanding
the discouragement in other countries in past
times, to efibrts in favor of republicanism, our ex.
periment shall not miscarry, for we will estab-
lish an independent Judiciary ; we will create an
asylum to secure the Government and protect the
people in all the revolutions of opinion^ and strug-
gles of ambition and faction. They did establish
an independent Judiciary. There is nothing. I
think, more demonstrable than that the Conven-
tion meant the Judiciary to be a co-ordinate, and
not a subordinate branch of the Gk)vernment.
This is my settled opinion ; but on a subject so
momentous as this is, I am unwilling to be direct-
ed by the feeble lights of my own understanding,
and as my judgment, at all times very fallible, is
liable to err much where my anxieties are mack
excited, I have had recourse to other sources for
the true meaning of this Constitution. Duriof
the throes and spasms, as they have been term«^
which convulsed this nation prior to the late Presi-
dential election, strong doubts were very strongir
expressed whether the gentleman who now 9a-
ministers this Government was attached to it as
it is. Shortly after his election, the Legislature
of Rhode Island presented a congratulatory ad-
dress, which our Chief Magistrate considered as
soliciting some declaration of his opinions of the
federal Constitution ; and in his answer, deeming
it fit to give them, he said : " The Constitution
^ shall be administered by me, according to the safe
^ and honest meaning contemplated by the plain
^ understanding of the people at the time ofitsadop-
^ tion ; a meaning to be found in the explanations of
^ those who advocated, not those who opposed it
^ These explanations are preserved in the publica-
' tions of the time." To this high authority I ap-
peal— ^to the honest meaning of the instrument ;
the plain understanding of its framers. L like
Mr. Jefferson, appeal to the opinions of those who
were the friends*of the Constitution at the time it
was submitted to the States. Three of our most
distinguished statesmen, who had much ageocr
in framing this Constitution, finding that objec-
tions had been raised against its adoption, aad
that much of the hostility produced against it had
resulted from a misunderstanding of some of its
provisions, united in the patriotic work of explain-
ing the true meaning of its framers. They pub-
lished a series of papers, under the sig^nature ot
PublittSj which were afterwards republished in «
book called the Federalist, This cotemporane-
ous exposition is what Mr. Jefferson must have
adverted to, when he speaks of the publications of
the time. From this very valuable work, for
which we are indebted to Messrs. Hamilton, Madi-
son, and Jay, I will take the liberty of reading
some extracts, to which I solicit the attention a
the Committee. In the seventy-eighth number
we read :
"Good behaviour for the continuance in office of
* the judicial magistracy, is the most valuable of &e
* modem improvements in the practice of GoremmenL
* In a Republic it is a barrier to the encioachznenta and
* opprensione of therepresentative body. And it is the beet
* expedient that can be devised in any Government to
* secure a steady, upright, and impartial administntien
* of the laws. The Judiciary, in a Government 'where
( the departments of power are separate from each ocfaer.
* from the nature of its functions, will always be the
* least dangerous to the political rights of the Constir
* tution. It has no influence over the sword or the
* purse, and may truly be said to have neither force nor
* will, but merely judgment The complete indepeo-
* dence of the courts of justice is essential in a limited
* Constitution ; one containing specified exceptions to
* the legislative authority ; such as that it shall pass no
* ex post facto law, no bill of attainder, dec Such lim-
' itations can be preserved in practice no other way thaa
737
HISTORY OF CONGRESS.
738
February. 1802.
Judiciary System.
H. OP R.
* through the courts of justice, whose duty it must be to
' declare all acts manifestly contrary to the Constitution,
* void. Without this, all the reservations of particular
' rights or privileges of the States or the people would
* amount to nothing. Where the will of the Legislature
' declared in it6 statutes, stands in opposition to that of
* the people, declared in the Constitution, the courts
' designed to be an intermediate body between the peo-
' pie and the Legislature, ore to keep the latter within
* the limits assigned to their authority. The Conven-
* tion acted wisely in establishing good behaviour as the
* tenure of judicial offices. This plan would have been
*• inexcusably defective had it wanted this important
* feature of good government"
The authority I have read proves to demonstra-
tion, what was the intention of the Conventioa
on this subject ; that it was to establish a Judici-
ary completely independent of the Executive and
Legislature, and to have judges removable only
by impeachment. This was not only the inten-
tion ot the Qeneral Convention, but of the State
conventions, when they adopted this Constitution.
Nay, sir. had they not considered the judicial pow-
er to be co-ordinate with the other two great de-
partments of Government, they never would have
adopted the Constitution. I ieel myself justified
in making this declaration by the debates in the
different State conventions. From those of the
Virginia convention, I will read sopie extracts, to
show what were there the opinions of the speakers
of both political parties. The friends of the Con-
stitution insisted that our federal judges would be
independent of everything but their behaviour and
their God. The opposens of the Constitution in-
sisted that they would not be perfectly independ-
?ntof the Legislature, because they might increase
their salaries. Most affectionately attached to
:he sovereign rights of the States and the people,
:he opposers of the Constitution displayed all the
juspicion of jealous lovers. They supposed the
judges would not be completely independent, and
insisted if they were not. there would soon be a
concentration of all powers in the Legislature, and
I perfect despotism in our country. Hence it ap-
pears, that both parties thought the judges ought
o be beyond the reach of the Legislature, except
)y impeachment. The friends of the Constitution
nsisted they were so; the opposers feared they
vere not. Let us attend to the debates in the con-
rention of Virginia.
General Marshall, the present Chief Justice,
ays :
** Can the Government of the United States go be-
yond those delegated powers ! If they were to make a
aw, not warranted by any of the powers enumerated,
t would be considered as an infringement of the Con-
stitution, which they are to guard: they would not
x)nsider such a law as coming under their jurisdiction ;
hey would declare it void.''
Mr. Grayson, who opposed the Constitution,
ve find saying :
<< The judges wtU not be independent, because their
alaries may be augmented. This is left open. What
r you g^ve six hundred pounds or one thousand pounds
Jinually to a judge I It is but a trifling object, when,
ly that little money, you purchase the most invaluable
7th Con.— 24
blessing that any country can enjoy. The judges are
to defend the Constitution."
Mr. Madison, in answer, says :
'* I wished to insert a restraint on the augmentation,
as well as diminution, of the compensation of the judges,
but I was overruled ; the business of the courts must
increase. If there was no power to increase their
pay, according to the increase of business, during the
life of the judges, it might happen, that there would
be such an accumulation of business as would reduce
the pay to a most trivial consideration."
Here we find Mr. Madison not using the words
sood behaviour, but says, "what we say was meant
for good behaviour," during the life of the judges.
The opinions of Mr. Madison I deem conclusive,
as to the meaning of the words good behaviour;
but I will read what was said by Mr. Nicholas,
which is substantially the same. [Here Mr. R.
read several extracts from the debates in the Vir-
ginia convention. Those quotations show that,
in Virginia at least, the public wish and intention
was to have an independent Judiciary.] Let us
now see what was the opinion on this subject of
the first Congress under the Constitution, when
the first Judiciary bill was debated. Mr. Stone
says : ^^ The establishment of the courts is immu-
table." Mr. Madison says : ^* The judges are to
be removed only on impeachment, and conviction
before Congress." Mr. Gerry, who had been a
member of the Greneral Convention, expresses
himself in this strong and unequivocal manner :
** The judges will be indei)endent, and no power can
remove them : they will be beyond the reach of the other
powers of the Government ; they will be unassailable,
and cannot be affected but by the united voice of Ame-
rica, and that only by a change of Government"
Here it is evident, Mr. Gerry supposed a project,
like the present, could only be efiected by the peo-
ple, through the medium of a convention; he
did not suppose it possible for Congress ever to
grasp at this power. The same opinions were held
by Mr. Lawrence and Mr. Smith. [Here Mr. R.
read further extracts from the Congressional De-
bates.] In addition to those high authorities, per-
mit me, Mr. Chairman, to read some parts of the
lectures on the Judiciary of the United States, of
the celebrated Judge Tucker, the present Professor
of Law at the University of William and Marv^
in Virginia. [Here Mr. R. read from Tucker's
Lectures.] I wish gentlemen, who compare the
official tenure of our judges with those of Great
Britain, to attend to the wide distinction between
their independence, as shown by the learned judse
and professor, whose lectures I have cited ; he
shows that the judges in England have only a
legal independence ; while in America, they en-
joy Constitutional independence.
The advocates of this bill say, the people could
not have meant to establish an independent Judi-
ciary, because a permanent body of men, beyond
all control, would prove hostile' to the liberties of
the people. Sir, we do not contend for any such
establishment ; we do not wish for a Judiciary per-
manent and beyond control. No, sir, all we in-
sist upon is, that the judges are liable to that sort
739
HISTORY OF CONGRESS.
740
H. OP R.
Judiciary System.
Febrcary. 1S(^'
of coDtroi only which theConstitution establishes ;
that "good behaviour" is the tenure by which
they hold their office, and that they cannot be re-
moved from it but by impeachment. That the
Judicial authority was never designed to depend
upon the Executive and Legislative powers, but.
in some sort, to balance them. That our federal
judicature was meant to give to the Government
a security to its justice against its power ; it was
contrived to be, as it were, something exterior to
the State. The honorable gentleman from Yer-
montj (Mr. Smith,) who preceded me, says, our
construction of the Constitution is derived from
implication. This is not the case, sir; we require
no ingenuity, no sophistry, no metaphysical dis-
tinctions to bear us out in our construction.
We resort to the plain meaning of the words of
the Constitution. Knowing the Constitution
would contain the seeds of its dissolution, should
it contain articles liable to ambiguity, the Con-
vention cautiously avoided obscurities ; they se-
lected as plain words as any in our language, to
represent their intention of having an independ-
ent Judiciary; they used words that are intelli-
gible to almost every capacity. Let us read them.
" The judges, both of the supreme and inferior
courts, shall hold their offices during good beha-
viour." These are the words of the Constitution ;
and what words, sir, could have been found more
express, more unequivocal in their meaning ? Let
us suppose, that, instead of being the Legisla-
ture, and instead of having the Constitution be-
fore us upon trial, and (as is the case I fear) being
about to sign its death warrant, we were a con-
vention, called by the people, to form' a constitu-
tion ; that we had determined to establish an in-
dependent Judiciary ; to have judges removable
•only by impeachment ; that, having decided this
-principle, it was referred to a committee to draught
a clause conformably to the idea of having the
Judiciary entirely independent of Executive and
Legislative power; and that this service was as-
signed to the honorable gentleman from Virginia,
4(Mr. Giles;) could his ingenuity, could his knowl-
'edge of our language, furnish words to represent
the iaCention of having an independent Judiciary,
more appropriate, more unequivocal, more fami-
liar, than the words used by the Convention, and
which I have just read? They are explicit, sim-
ple, unqualified, and, at the same time, imperative.
The understanding of the Convention, of the
States, and of the people at large, was, that our
Judiciary should be independent. They deemed
this Constitutional check essential to the duration
of the Government ; and until the fourth day of
last March, I believe the Judiciary was considered
as sacred. The State Governments, and the peo-
ple, and the friends of our Federal Union, rever-
enced it as the fortress and ark of their safety.
While this shield remains, it will be difficult to
dissolve the ties which knit and bind the States
together. As long as this buckler remains to the
people, they cannot be liable to much or perma-
nent oppression. The Government may be ad-,
ministered with indiscretion and with violence ; of-
fices may be bestowed exclusively upon those who
have no other merit than that of carrying rotes a:
elections; the commerce of our country maybe
depressed by nonsensical theories, and public credi:
may sufier from bad intentions; but, so long a^
we may have an independent Judiciary, the grea:
interests of the people will be safe. Neither the
President nor the Legislature can violate their
Constitutional rights. Any such attempt woold
be checked by the judg^es, who are designed by the
Constitution to keep tne different braaches of the
Government within the spheres of their respect-
ive orbits, and say, thus far you shall legislate,
and no farther. Leave to the people an indepead-
ent Judiciary, and they will prove that man is
capable of governing himself; they will be saved
from what has been the fate of all other Repab-
lies, and they will disprove the position that Gor-
ernments of a Republican form cannot endure.
I did hope, from the promises made by the hon-
orable gentleman from Virginia, (Mr. Gil£s.) on
a former occasion, when we attempted to post-
pone this bill, that he would have given it an oc-
impassioned consideration. If it were possible
for him to dismiss party feelings, and argoe anr
question upon its real merits, it was to he hopd
he would have given a cool and deliberate con-
sideration to this all important subject, and ar-
gued it upon the sround of Constitutionalitr.
But, unmindfdl of his promise not to consider
this a party question, the gentleman prefaced hii
observations with saying, he designed to make
them personal.
His preliminary remarks were highly afilictiu
to myself and friends. We deprecated this course,
but tne gentleman's crimination must be deemexl
a justification of the recrimination which heba^
rendered necessary.
This is a painful task, and if gentlemen shoold
feel themselves or their friends wounded by ant
of our observations, they must recollect the sitc-
ation in which they have placed us^and that tne
necessity of defendmg ourselves has been imposJ
upon us by their attacks. In a speech which oc-
cupied two hours, ten minutes only of that time
were given to a consideration of the constitution-
ality of this measure, and then the gentlemaa
found it convenient to employ the rest of it infa^
minating his anathemas against the past Admin-
istrations, and reiterating those invectives an^
censures which on all past occasions he has indul-
ged himself in bestowing upon those who are n:
longer in power. Whetner attacks are to be coa-
tinued upon the past Administrations to diven
the public eye from the present Administration
or wnether they are calculated to raise a smoke,
under the cover of which gentlemen may roaici
unobserved to attack the vitals of our Coostitii-
tion, is best known to themselves. The gentle-
man from Virginia has rendered homage to the
Judiciary of Great Britain ; acknowledges mock
of the prosperity of that nation to be produced bf
the independence of their judges; says ours are
at least as independent, but that the doctrine oi
making them completely independent, is a mon-
strous one. Sir, there is no kind of analogy be-
tween the Governments of America and Cereal
741
HISTORY OF CONGRESS.
742
February. 1802.
Judiciary System.
H. ofR.
firitaio. and none between the situation of the
judges in that and in this country. The people of
England gained much, and an abundant source of
oppression dried up, when they got iheir judges?
made independent of the Monarch, whose crea-
tures they had been, and whose arbitrary meas-
ures they had been obliged to support. But, sir.
it was impossible to make the judges a check
upon Parliament, for nothing in thatGoTernment
is independent of Parliament. In this country
things are far different; we haxe a written Con-
stitution ; the people have given certain powers to
the Executive, other defined powers to Congress,
and delegated other powers to the Judiciary. But
the gentleman from Virginia wishes to make Con-
gress a.s powerful as the Parliament of Great Bri-
tain ; he wants the Legislature in America to be
(like the Parliament in England) without con-
trol; he wants to destroy that check which the
people in their Constitution formed for us; he
wants to prostrate that protecting principle which
was never before known in a Republican Govern-
ment, and for want of which all Republics have
Jerished. In England the independence of the
udiciary, as far as it goes, I highly Appreciate;
but I venerate the independence of our ludges (as
designed by the people when they adopted the
Constitution) because it is complete ; in England
it is not. There they have a legal independence ;
here a Constitutional one. Although the inde-
pendence of the judges in England is partial, yet
It has been productive of vast good ; although they
may be said to be in some measure still dependent
on the Monarch, inasmuch as pensions ami places
are in his gift, yet it is well known the independ-
ence they do possess of the Crown prevents rea-
sons of State from entering the courts, and that
the royal will sinks into nothing and disappears at
the seat of justice when opposed by the law.
From many proofs of this fact, I beg leave to se-
lect the case of Mr. Wilkes, at the time of his sec-
ond election, and when he had been outlawed :
although the whole power of the Crown was
most actively employed to crush this obnoxious
subject, yet Lord Mansfield, and the whole bench
of judges, declared the outlawry contrary to the
principles of common law, and reversed it as be-
ing illegal. Permit me to read this case. [Here
Mr. R. read an account of the proceedings, and
the whole of Lord Mansfield's celebrated speech.]
The Judiciary on this occasion we see checking
arbitrary Executive measures, because they were
independent of the Executive.
In America the Judicial power was designed as
a Constitutional check upon both the Executive
and Legislature ; but gentlemen on the other side,
deprecating all control, are for i>rostrating the
check imposed by the people on their Representa-
tives^ and the destruction of which will make them
omnipotent. The gentleman from Virginia says
the Judicial power was not formed by the Consti-
tution. I shall not be surprised by any declara-
tion he may make about the meaning ot the Con-
stitution after this. Sir, the Judicial power is es-
tablished by the Constitution equally with the Ex-
ecutive ana Legislature. The organization of the
courts has been left to Congress, but the instru-
ment under which we act has established the Ju-
diciary, and has also assigned its duties. A charge
has been made against us by the honorable gen-
tleman, which I must deny; I plead not guilty to
it, and say he is wholly mistaken. He has charged
us with having changed with the times, and
with having formerly advocated the extension of
the powers of this House. Sir, this is not the case,
tempora mutantur sed non mutamur in illis.
Knowing how strongly disposed in Governments
like ours the popular branch always is to grasp at
illegitimate powers, we have in times past strug-
gled hard for preserving to all the branches of the
Government the powers delegated to them re-
spectively by the Constitution. We have ever
been watchful of Executive and Judicial rights,
and defended them from the encroachments at-
tempted by the Legislature. The gentleman
from Virginia must permit me to call to his mem-
ory the course of conduct we pursued on a very
memorable occasion, when he and his friends
wished this House to arrogate Executive powers.
I refer to the proceedings on a motion made by
the honorable gentleman then his colleague, who
is not now a member of this House, (Mr. Nicho-
las,) in the debate on the foreign intercourse bill.
Mr. Nicholas said :
<< I believe all governments like ours tend to produce
a union and consolidation of all its parts in the Execu-
tive department, and the limitations of each other will
be destroyed by Executive influence, unless there is a
constant operation on the part of the Legislature to
resist this overwhelming power. A representative
Government may be made the most oppressive, and yet
preserve all its Constitutional forms, and the Legisla-
ture shall appear to act upon its own discretion while
that discretion shall have ceased. Where under our
Government the Executive has an influence over the
Legislature, the Executive is capable of carrying its
views into efiect in a manner superior to what can be
done in a despotic monarchy. Mischiefs will be carried
further, because the people will be inclined to submit
to a Government of its own choosing. » Monarchs can-
not carry their oppression so far without resistance as
Republics. Suppose Executive patronage had extend-
ed its influence into the Legislature, and that in con-
sequence of a thirst for office majorities were formed
in both branches of the Legislature devoted to the
views of the Executive ; where would be a check to
objects hostile to the public good 7 In what branch of
the Government would you look for it ? Was it the
Senate 1 Will you look to this House 1 The majori-
ties are humble expectants of office. Where then will
you find anything capable of controlling the overbear
ing influence of the Executive ? It must be in small
and feeble minorities, who, by their opposition, and at^
tention to the interesto of the people against arbitrary
power, may rouse the people to a sense of their danger,
and force the public sentiment to be respected ; this, he
conceived, would be the only check."
It hence appears, that those gentlemen have
availed themselves of every occasion to extend
the powers of Congress, and had their attempts been
successful, we should ere this have had a consol-
idated Government; a kind of Government which
the people of this country never wished to estah-
743
HISTORY OF CONGRESS.
744
H. OP R.
Judiciary System,
February. 1802.
lish, and which is incompatible with their best
rights. The gentleman from Virginia, whose ar-
gument I have quoted on the subject of the for-
eign intercourse bill, shows that those who were
then in the minority extended their project so far
as to count upon the minority to check the pow-
ers of the other departments of Government. Not
so, sir, is the case with us -, we do not count upon
the efforts of feeble minorities; we do not wish
to guard the Constitution by appeals to the peo-
plej we will do nothing calculated to produce in-
surrection ', we do not want to protect the great
charter of our rights by the bayonet. No, sir, we
rely on honest and legitimate means of defence ;
we wish to check these gentlemen only with Con-
stitutional checks. The people of America say in
their Constitution, the Judiciary is designed as a
check upon the Legislature and Executive, and
as a barrier between the people and the Govern-
ment. We say it is the sheet-anchor which will
enable us to ride out the tornado and the tempest,
and that if we part from it there is no safety left ;
that it is the only thine which can preserve us
from the perilous lee-snore, the rocKs and the
quicksands, where all other Republics have per-
ished. The Judiciary is the ballast of the na-
tional ship; throw it overboard and she must
upset.
[Mr. Giles begged leave to explain. He said
the e^entleman had not quoted his arguments fair-
ly ; he never held the ideas ascribed to him ; he
certainly had not said the gentleman from South
Carolina wished, on former occasions, to confide
power to the popular branch of the Government.
The gentleman from South Carolina, he believed,
never wished this or any other popular branch of
Gk>vernment trusted with power.]
Mr. R. said, on a subject so momentous as this
he would not trust to his memory ; that he had
taken down the words of the gentleman from Vir-
ginia ; he certainly did not mean to misrepresent
nim, and was sorry he had supposed he had not
quoted hkn fairly. It has been further said by
this gentleman, that as the Judiciary was estab-
lished for the benefit of the people, and is main-
tained by their money, the people must wish it
Eut down when the proper authority tells us it
as no duties to perform, and is a mere sinecure.
I should be glad to know, sir, what is meant by
the proper authority ; are we to judge in this busi-
ness, or is the Executive to judge for us ? Sir, the
Executive has seen fit to judge for us; but I be-
lieve he has gone beyond the line of his duty ; and
it would be more proper to call this document,
DOW in my hand, an officious than an official act.
However unpleasant it may be to gentlemen to
call this an Executive measure, the great solici-
tude discovered by the President to get disembar-
rassed of this most salutary Constitutional check,
proves it his measure. It is not the measure of
Congress nor of the people, but of the Executive.
Not satisfied with calling the attention of Con-
gress to this subiect, he has, in his zeal to furnish
arguments to tnose who support here his meas-
ures, given us a table showing what business had
been done in the Federal courts prior to the late
organization of them. Had the former President
furnished the late Congress with such a document
as this, it would have been considered as abun-
dant evidence of the inconvenient organization of
the Federal courts, and furnished arguments for
the change in the system which we did make.
The result of this document is. that owing to liie
inconvenient arrangement of the system, suitors
were deterred from entering the nationai courts.
It shows how insufficient the provisioD for doin^
business was under the ancient system, and not
how little there is to do. In a nation so great
and so growing in its greatness as ours is; among
a people so commercial, so enterprising, and so
attached to right as are the people of this country,
there must be much law or there will be no jus-
tice. But had the late Executive furnished, un-
solicited by Congress, such a document, the whole
nation would have rung with censures. He would
have been charged with considering Congress as
a mere bureau ; a committee or commune through
which the Executive was to make his projects
and his propensities felt. In this document. No.
8, we see the arm of the Executive raised against
the Judiciary, and in his Message we hear him
say it must fall. If he had contented himself
with merely directing our attention to the law he
wishes repealed, we might have obtained mucb
more useful information for ourselves than what
he has been pleased to give. If he had only ad-
verted to this subject as one requiring the con-
sideration of Congress, and they had wished for
information, they would have called upon the
proper officer for it^ and have directed the Attor-
ney General to furnish a table, showing what hazi-
ness had been done in the circuit courts since tJie
time of their establishment. Such a document
would have shown whether the existing law be
beneficial or not. But the President, it seemsL
did not deem it wise to leave us the usual course
of obtaining information ; perhaps he had suffi-
cient reasons for this ; probably such a document
as I have mentioned would have given a result
not suited to Executive views. It would hare
shown that much important business had been
done in the circuit courts, although they had
but a short existence. Whether the Execu-
tive was incited to act with the promptitude he
did, to prevent its being known of what vast
utility the law is, it is not for me to say. I must
be permitted, however, Mr. Chairman, to say, that
having passed the last Summer in the Bastem
States, I know that in that section of the Union
the circuit court was fully occupied during its
session. It is within my own knowledge, that at
Portsmouth, in New Hampshire, there was much
business done ; at Boston there was a ereai deal
of important business despatched, much to the
satisfaction of suitors, and I learned from an au-
thentic source that the court was a highly popu-
lar one. At Newport, in Rhode Island, there was
so much business, that the court was under the
necessity of holding evening sessions. In Vermont,
I know that much business was done, and done
much to the satisfaction of the public. From the
gentlemen of the bar in New Jersey, we have a
745
HISTORY OF CONGRESS.
746
February, 1802.
Judiciary System,
H.opR.
memorial, stating that there had been many causes
tried in the circuit court in that State. la Phila-
delphia, the gentlemen of the bar, of both politi-
cal parties, have united in informing us that they
tion ; but as I am unwilling to abuse the patience
of the Committee, as I have detained them I find
more than two hours, and have not yet ojQfered
half of the observations I am desirous of submit-
deem the continuance of this court not only useful ting, I will suspend them for the present and con-
but necessary. From the Chamber of Commerce tinue them to-morrow, or will now proceed, as
at New York, and from the merchants in Phila-
delphia, we have received petitions, praying for a
continuance of the law, which has been de-
nounced, and which the Executive thinks unne-
cessary. These facts make a mass of high evi-
dence, which on ordinary occasions would weigh
much. But I hear it will not preserve the law in
question. It has been frowned upon from high
authority, and I fear it must perish.
Sir. this document. No. 8, is as little calculated
to serve the purposes of gentlemen who appeal to
it, as is the document produced some days past by
a gentleman from Virginia, (Mr. Thompson ;) he
^ave us a record from the court of chancery, in
Virginia, to show how much business there is
done in that court, where, he says, there is but
one judge, and his salary is only one thousand
five hundred dollars. The honorable gentleman
says, in Virginia they have but one chancellor,
"With the salary of one thousand five hundred dol-
lars, who renders as much service as all the nation-
al courts; and to prove this, he reads to us a cer-
tificate from the clerk of the court of chancery,
stating, that on the chancery docket there were
two thousand six hundred and twenty-seven
causes. This paper serves to show, not what
business is done, but what a mass of business
there is undone, and which the court is incompe>
tent to dismiss. What a frightful picture has he
given of the judicature of his own State ! How
alarming must it be to foreigners, and the citi-
zens of other States, who may have causes de-
pending in Virginia ! What chance can a citizen
of South Carolina, Massachusetts, or elsewhere,
have of obtaining justice before the lapse of many
years, if the history given by the gentleman from
Virginia be correct! Should a citizen of another
State be a suitor in Virginia, it is competent to
the citizen of that Slate to carry the cause into the
court of chancery, where a mass of business pre-
sents itself to his view, and he finds two thousand
six hundred causes must be dismissed before his
can be heard. Where would the citizens of other
States, having debts in Virginia, attempt their re-
covery ? They would seek justice, sir, in the
Federal circuit court, which gentlemen now are
endeavoring to annihilate, and not in the State
courts, which may be more properly called a bed
of justice than a court of justice, if justice sleeps
there, as the gentleman has represented. He al&o
states, that State justice is cheaper than national
justice. I do not believe this a correct position.
1 am very willing to enter into a comparison, but
must exclude from it Virginia, because he has
shown that justice is denied there, it being greatly
delayed. I did hope, Mr. Chairman, the motion
made before I got up, for the rising of the Com-
mittee, would have obtained, and should not have
•commenced offering my observations at so late an
hour, had there not been a loud call for the ques*
shall be most agreeable to the Committee.
On motion of Mr.S. Smith the Committee rose.
Thursday, February 25.
A memorial of John Gardiner, an alien, now
an inhabitant of the City of Washington, was pre-
sented to the House and read, stating that the
memoraiist has brought his family nito the United
Slates, with an intention to reside permanently
therein; and praying, that, therefore, he may be
enabled to obtain a patent for discovery of a me-
thod of constructinfiT dry docks to repair and build
ships in, on navigable waters, where the rise and
fall of tides is inconsiderable. — Referred.
Mr. Samuel Smith, from the Committee of
Commerce and Manufactures, to whpm were re-
ferred, on the ninth instant, the petitions of John
Caldwell and others, merchants and traders in
the State of Connecticut, and of sundry mer-
chants and inhabitants of tne town of Plymouth,
in the State of Massachusetts, reported a bill for
the rebuilding the light-house on Gurnet Point,
at the entrance of Plymouth harbor ; for rebuild-
ing the light-house at the eastern end of New-
castle Island ; for erecting a light-house on Lynde's
Point, and for other purposes; which was read
twice and committed to a Committee of the whole
House on Monday next.
JUDICIARY SYSTEM.
The House then went into a Committee on the
bill, sent from the Senate, entitled "An act to re-
peal certain acts respecting the organization of
the Courts of the United States, and for other
purposes."
Mr. RuTLEDOE. — I beg leave, Mr. Chairman, to
proffer my thanks to the Committee for the in-
dulgence with which they favored me yesterday,
and at the same time to acknowledge the respect
excited by the politeness of the honorable gentle-
man from Marvland, who moved for its rising.
In the course or the observations I yesterday of-
fered, I endeavored to show that it was the inten-
tion of the Convention to make our jtidges inde-
pendent of both Executive and Legislative power ;
that this was the acknowledged understanding
of all the political writers of that time; the
belief of the State Conventions, and of the first
Congress, when they organized our Judicial sys-
tem. If I have been successful in my attempt to
establish this position, and if (what I suppose
cannot be denied) it be true in jurisprudence that
whenever power is given specially to any branch
of Government, and the tenure by whicn it is to
be exercised be specially defined, that no other,
by virtue of general powers, can rightfully intrude
into the trust ; then I presume it must follow,
of consequence^ that the present intermeddling
of Congress with the Judicial department is a
J
747
HISTORY OF CONGRESS.
748
H. OP R.
Judiciary System,
February, 1802.
downright usurpation, and that its effect will be
the concentration of all power in one body, which
is the true definition of despotism. As, sir. every
thing depends upon the fair construction which
this article in the Constitution respecting the Ju-
diciary is susceptible of, I must again read it.
[Here Mr. R. read several clauses of the Consti-
tution.] Some of the clauses we see are directory
and others prohibitory. Now, sir, I beg to be in-
formed of what avail are your prohibitory clauses,
if there be no power to check Congress and the
President from doing what the Constitution has
prohibited them from doinsr? Those prohibitory
regulations were designed for the safety of the
State governments, and the liberties of the peo-
ple. But establish what is this day the ministe-
rial doctrine, and your prohibitory clauses are no
longer barriers against the ambition or the will of
the National Government ; it becomes supreme
and is without control. In looking over those
prohibitory clauses, as the representative of South
Carolina, my eye turns with no inconsiderable
degree of jealousy and anxiety to the ninth section
of the first article, which declares — [Here Mr. R.
read the article respecting migration before the
year 1808.]
I know this clause was meant to refer to the
importation of Africans only, but there are gen-
tlemen who insist that it has a general reference,
and was designed to prohibit our inhibiting mi-
5 ration as well from Europe as any where else,
t is in the recollection of many gentlemen who
now hear me, that in discussing the alien bill, this
clause in the Constitution was shown to us, and
we were told it was a bar to the measure. And
an honorable gentleman from Georgia, then a
member of this House, and now a Senator of the
United States, (and who had been a member of
the Convention,) told us very gravely, he never
considered this prohibition as relating to the im-
portation of slaves. I call upon gentlemen from
the Southern States to look well to this business.
If they persevere in frittering away the hon-
est meaning of the Constitution by their forced
implications, this clause is not worth a rush ; is a
mere dead letter; and yet, without having it in
the Constitution, I know the members from South
Carolina would never have signed this instrument,
nor would the convention of that State have
adopted it. My friend from Delaware, standing
on this vantage ground, says to our opponents,
Here I throw the gauntlet, and demand of you
how you will extricate yourselves from the dilem-
ma in which you will be placed, should Congress
pass any such acts as are prohibited by the Con-
stitution ? The judges are sworn to obey the Con-
stitution, which limits the powers of Congress,
and says, they shall not pass a bill of attainder or
ex post facto law ; they shall not tax articles ex-
ported from any State, and has other prohibitory
regulations. Well, sir, suppose Congress should
pass an ex post facto law, or legislate upon any
other subject which is prohibited to them, where
are the people of this country to seek redress?
Who are to decide between the Constitution and
the acts of Congress? Who are to pronounce on
the laws? Who will declare whether they be
unconstitutional ? Gentlemen have not ans'wered
this pertinent inquiry. Sir, they cannot answer
it satisfactorily to the people of this country. It
is a source of much gratification to me to know,
that my sentiments on this subject^ as they relate
to the constitutionality of it, are m unison with
those of the wisest and best men in my native
State. The Judicial system had proved so incoo-
venient there, as to render a new organization of
it necessary some years past. There were ijentle-
men in the Legislature as anxious to send from
the bench some of the judges as gentlemen here
are to dismiss our federal judges. Personal ani-
mosities existed there as well as here, though not
to so great an extent ; but it was the opinion of a
large majority of the South Carolina Le«risia(are.
that as the Constitution declares '^ the judges shall
hold their offices during eood behaviour," the of-
fice could not be taken from them, the measure
was abandoned, and the wise and cautious coune
pursued, which we wish gentlemen here to follow r
the system was not abolished, but modified and
extended ; the judges had new duties assigned to
them, and their number was increased, bat no
judge was deprived of his office. In South Caro-
ina they have a court of chancery, consisting of
three chancellors, and the law establishing it re-
quires the presence of two judges to hold a coart.
During a recess of the Legislature one of the chan-
cellors resigned and another died. The fanctioD^
of this court of consequence became suspended.
All the business pending; in it was put to sleep.
The public prints were immediately filled with
projects for destroying the court, which had been
denounced as unnecessary. As the citizens of the
western part of the State had not participated
much in the benefits derived from the court of
chancery, many of the most influential of them
deemed it of little utility. The opposition assum-
ed so formidable an aspect as to determine the
Grovernor (who exercises the power of appointing
judges during the recess of the Legislature) not
to make any appointment, believing the court
would be abolished. When the Legislature met,
an effort was made to abolish the court ; but a
large majority giving to the Constitution the hon-
est meanmg of its framers, considered the judges
as having a life estate in their offices, provided
they behaved well ; and the vacancies on the chan-
cery bench were immediately supplied.
That the national Judiciary Establishment is
comparatively more costly than are the State Ju-
diciaries, is far from being the case. I believe, Ic
may be so in Virginia, where they have one chan-
cellor, with little salary and much business, but it
is not so in other States. In South Carolina, we
have six judges at common law, at six hundred
pounds sterling a year each ; three chancellors at
five hundred pounds each ; which, together with
the salaries and fees of office of the attorney
general, master in chancery, solicitors, clerks.
and sheriffs, amount to six thousand two hundred
pounds sterling. And yet, sir, justice, I believe
IS no where cheaper than in South Carolina. By
the judicious structure of her Judiciary system.
749
HISTORY OF CONGRESS.
750
February, 1802.
Judiciary System.
H. ofR.
the streams of justice are diffused over the whole
Statej and every man is completely protected in
his life, liberty, property, and reputation. The
courts are almost constantly in session. The
judges are gentlemen of high talents, integrity,
and strict impartiality ; and every one who goes
into the court of that State, not only obtains am-
ple justice, but obtains it promptly ; this, sir, is
what I call cheap justice. The gentleman from
Virginia has seen fit to notice the law which laid
a direct tax, and said it was imposed when we
knew the Administration of this Government
was soon to pass from those then in power, and
was resorted to as a means of extending Execu-
tive patronage, and to make provision for the
friends of an expiring Administration. Can the
honorable gentlemen be serious in all this? Does
he remember when we passed this law ? It was
in 1798, when I will be bold to say, the Adminis-
tration enjoyed the highest degree of popular
favor. In no popular Qovernment, perhaps, was
an Adminibtraticn more popular than was the
former Administration, at the time this tax was
laid-. Sir, this law had no connexion with per-
sonal or party considerations. Like all the meas-
ures of the past Administration, it was designed
to promote the public good. Had we, like our
opponents, consulted the caprices and prejudices,
and not the real interests of our constituents; had
we been merely attentive to popular favor, we
should not have passed this law. At the crisis it
was passed, the public good demanded it, and we
were regardless of every other consideration. A
nation that had lighted up the flame of war in
every corner of Europe, that was prostrating the
liberties of every free people, and subverting the
Government of every country, saw fit to menace
us. Told us for the preservation of our peace
and independence we must pay tribute. This de-
grading measure was scornfully rejected by our
Administration; they said, if we must fall, we
will fall after a struggle ; and our citizens pre-
pared themselves for war with alacrity, and re-
garded every sacrifice as inconsiderable, com-
pared with the great sacrifice of our independ-
ence. With this prospect of immediate war, we
should have acted not only unwisely but treach-
erously, had we trusted for public income to the
revenue derived from trade. Had our trade been
destroyed, there would have been a complete des-
titution of revenue, and to place the means of na-
tional defence as far beyond the reach of con-
tingency as possible we imposed the direct tax.
We knew this law would prove arms and ammu-
nition to those who were inventing all the false-
hood credulity could swallow, and who were
busily employed in misrepresenting and calumni-
ating the conduct of the Government. We did
suppose they might make this law their artillery
to batter down tlie Administration; but we were
not deterred from our honest purposes by this
expectation ; a change of men. when compared
iwlth a change of government, weighed with our
minds as dust does in the balance ; our measures
did not aim at popularity, and we were just to
our country, regardless of party consequences.
At this early period, says the gentleman, it was
to have been calculated what would be the result
of the Presidential election. Sir, those must have
been gifted with second sight, they must have
been prophets indeed, who could have then fore-
told how the election would issue ; the result was
as doubtful as any event could be, till within a
few days of th^ election. It is recollected that
everything depended upon the South Carolina
vote; all the gentlemen in nomination went there
with an equal number of votes ; the anxiety dis-
played at the time by the gentlemen here from
Virginia, proved they then deemed it doubtfuk
how the election would terminate. Indeed, sir^
nothing could have been more doubtful, and I be-
lieve it is fully known to the ministerial side of
this House, that it depended upon one of the gen-
tlemen nominated, who had not the Carolina
votes, to have obtained them, and produced to
the election a different result; but his correct
mind was obnoxious to any intrigue; it would
not descend to any compromise, and this honor-
able man knew that no station could be honorable
to him unless honorably obtained. In the very
wide range which the gentleman from Virginia
has permitted himself to tnke, he has been pleased
to notice the conduct of the late Congress when
they were occupied in the election of a President
of the United Slates, and he has said we were
then *' pushing forward to immolate the Consti-
tution of our country." What does all this mean,
sir ? What, sir ! because we, of the two gentle-
•men who had from the electors an equal number
of votes, did not prefer him who was from Vir-
ginia, are we to be charged with an immolation
of our Constitution ? Sir, the gentleman from
Virginia was not a member of the last Congress,
and lest he should not know the history of the
transaction to which he alludes, I will give it.
The Electors chosen in the different States gave
the same number of votes for Thomas Jefferson
and Aaron Burr; there being a tie, it devolved,
by the direction of the Constitution, upon the
House of Representatives to make an election.
We sincerely believed that Mr. Burr was the best
and the most fit man to be President, and we ac-
cordingly voted for him ; we continued to vote
for him six and thirty times; we were anxious
to have him elected, and we deprecated the elec-
tion of the other candidate ; but when we found
fentlemen were determined not to have the can-
idate from New York, and said they would have
him from Virginia President, or they would have
no President, we, who venerated our Constitution
too sacredly to do anything which should hazard
the loss of it, yielded. We believed Mr. Jeffer-
son radically and on principle hostile to the Na-
tional Constitution ; we believed some of the most
important features in it obnoxious to him ; we be-
lieved him desirous of destroying the independ-
ence of our Judiciary ; we believed him opposed
to the Senate as now organized, and we believed
him destitute of that degree of energy necessary to
maintain the general liberty of the people of the
United States. With these impressions deep up-
on our minds, we should have been traitors to our
751
HISTORY OF CONGRESS.
752
H.ofR.
Judiciary System,
February, 1802.
country had we voted for the gentlemaD from
Virginia, as long as there was any prospect left to
us of elevating the gentleman from New York;
hut when we found the object of our preference
was so obnoxious to gentlemen on the other side,
that they would hazard the having of no Presi-
dent ratner than have him, we ceased our oppo-
sition. And this is what the honorable member
from Virginia has been pleased to call '' pushing
forward to immolate the Constitution."
I regret, Mr. Chairman, being compelled to
mention names and say anything of a personal
nature, but I am obliged to do it in pursuing the
gentlemen from Virginia, who in his extraordi-
nary course has not only mentioned the names of
gentlemen, but ascribed unworthy motives for
their conduct. He has said Mr. Read and Mr.
Green voted for the law under which they got
appointments. Although I have abundant proof
that neither of these gentlemen solicited their of-
fices, that they were given spontaneously, and
without bein^ expected, yet I will merely answer
this observation by mentioning what is very gen-
erally known to all gentlemen who have been of
late in the councils of the nation; it is, that it
was the invariable practice of the former Execu-
tive to appoint gentlemen to office without previ-
ously advising with them. It is well known that
under the law gentlemen are now endeavoring to
repeal, Mr. Jay was appointed Chief Justice, and
about the same time several gentlemen in this
House were appointed to some of the most hon-
orable stations under our Government; the Ex- >
ecutive's intention, it is well known, had not been
previously notified to them; it is well known they
all declined accepting the places profiered to them.
Permit me, sir, to give a brief history of the case
of Mr. Green, on which the gentleman from Vir-
ginia has dwelt so much.
The district judge in Rhode Island was ap-
pointed circuit judge, and Mr. Green was ap-
gointed district judge. On the fourth day of
larch, Mr. Green took his seat in the Senate;
the friends of the Administration objected to his
keeping it; they said he was a judge, as appeared
by the journals of the Senate; they here made a
complete recognition of his appointment as judge,
and he vacated his seat. After getting home he
received his commission, in which the blanks had
been filled up with the words circuit judge, in-
stead of district judge. Mr. Green enclosed his
commission to the Executive, in a letter most
profoundly respectful, and requested the errors of
the clerk in tne Department of State might be
corrected, and his commission made to conform
to the appointment, as recorded on the Senatorial
journal. To this letter, which was in highly re-
spectful terms, the President would not deign to
have any answer given ; he pocketed Mr. Green's
commission, and placed another gentleman in his
office. This is a history of the appointment of
Mr. Green, and the manner in which the Presi-
dent "corrected the procedure." To my friend
from New York, (Mr. Morris,) who some days
past adverted to the President's system of perse-
cution, the honorable gentleman from Virginia
says he is so ignorant of the existence of any such
system that he cannot conceive what is alluded to;
and my friend from North Carolina. (Mr. Hes-
nERSON.) who spoke of the destructive spirit
which iiad mounted in the whirlwind and noir
directs the storm against one-half of tbecommc-
nity, he charges with having winged his flight in-
to the regions of fancy ; and tells us the spirit be
sees is a mere spirit, tnin as air, and without real
form or substance. Sir, my honorable friend from
North Carolina is under no magical delusion; the
spirit he noticed is a gigantic spirit, and with a
giant's size unites a giant's appetite: it attacks tJie
independence of mmd, and violates the right of
opinion; it establishes a mental tyranny; tam-
pers with integrity and poisons morals ; ii has ar-
raigned one-half of the community against ihe
other; it denounces as a ^^sect" in our countrv all
those whom the illustrious Washingtox took to
his confidence and invested with his favor. U
establishes boards of inquisition to know bow
men who are in office voted at the last election,
and if they did not then subserve the views of the
ruling party they are stripped of their offices.
Many of the proscribed are veterans of '76. The?
wasted their youth and their substance in fighting
our Revolutionary battles, and as a small reward
for great services, they had offices given them by
the distinguished Washington. Most of thcoe
who had been appointed by him, this destroy iog
spirit has turned adrift, and to those who are no;
yet destroyed, it gives (in the New Haven reply)
the promise of Polypheme to Ulysses, and says,
"you shall be devoured last." This is the spirit
sir, against which my friend from North Caroli-
na has raised his voice, and if the gentleman from
Virginia will appeal to the wives and children
of ninety or a hundred meritorious men who have
been hurled from office to make way for those
who are willing, without examination* to yield a
blind support to ministerial measures; losing
hosannas to the President, and bend to his wilJ as
the osier does to the breeze ; I say, sir, if he will
appeal to the wives and children of those gende-
men, who have been degraded, disgraced, and re-
duced to want, as far as it was in the power of
the Executive to degrade and reduce them, they
will tell him this is a spirit of substance, and not
thin as air. Fatigued by its labors, we now see
this great spirit resting on its club ; it no longer
dispatches its victims as heretofore, by batches,
but, as strength and appetite return^ proscriptions
are continued, though in detail. Since the meet-
ing of Congress, there have been many dismis-
sals ; in the last week only, I heard of that of a
meritorious officer, who is an aged and war-wora
soldier. To this gentleman, who had grown grey
in the service of his country, General Wasbixg-
TON gave an office which mi^ht cheer the eve-
ning of his days; the duties of it were discharged
with industry and fidelity. He has been a usefnl
citizen; he nas thirteen children, and most of
them are daughters — the oldest has scarcely num-
bered eighteen years, and the youngest not more
than eight months. This gentleman has been
placed on the proscribed list ; not, sir, because he
753
HISTORY OP CONGRESS.
754
February, 1802.
Judiciary System,
H.orR.
3C=
had been negligent of any one of his duties, but
because some of those hands which (as it has
been modestly said) burst open the doors of honor
and confidence, were widely stretched out for re-
wards; to give them loaves and fishes they have
been taken from the support of this numerous
and lovely family. Sir, there not only exists, as
my friend from North Carolina tells us, a great
and destroying spirit, but there are also subordi-
nate spirits employea in this goodly work of pro-
scription ; the master-spirit, unable to take a view
of the whole ground, has its under spirits; these
minor spirits, within the spheres of tneir respect-
ive departments, are singling out objects of Ex-
ecutive vengeance. By some of the papers which
lie before me on my desk, I see the Postmaster
General is busily employed; every postmaster,
and every little deputy-postmaster, who cannot
prove his claims to Executive favor by proofs of
conformity to the orthodox faith of the dav, is
considered as a heretic. In the n^rsecution or the
Postmaster General, of those wno are not devo-
ted to the party, I observe something truly ridic-
ulous. Thinking, I suppose, that public opinion
would demand some justification of this conduct,
he undertakes to assign reasons for it. I observe
in the paper of this morning the Postmaster Gen-
eral has removed one of his deputies at Aueusta,
in Georgia, and makes a sort of an apology for it.
He tells the man it is because he is a printer, and
the occupations are incompatible. This gentle-
man writes to him that he is not a printer, and
that he never was concerned, directly nor indi-
rectly, in the publishing of a pa^er. It seems,
then, the Postmaster General was mistaken, but
the deputy lost his office. This lesson will pre-
vent future explanations, probably, by the Post-
master General. It will be more convenient for
him to wrap himself up in Executive infallibility
and insist "the King can do no wrong." The
gentleman from Virginia has noticed the Sedition
act, and says, the present Executive requires no
such shield for his protection ; that he wants no
artificial means of defence; yet, in the very same
breath, we hear the gentleman complaining of
defamatory scribblers, and of the profligacy of
our presses. It does not become the honorable
gentleman to complain of the public prints. It
is well recollected, that when heretofore we en-
deavored to check the licentiousness of the press,
he and his friends insisted that its licentiousness
and liberty were so closely allied, that should we
attempt to touch this vein, we would run the haz-
ard or giving a mortal wound to the great arte-
ries of the body politic. This was formerly the
language of gentlemen who are now, it seems,
sufitering from the effects of their past policy.
They are now experiencing what they might have
learned from a good old book. " He who soweth
the wind shall reap the whirlwind." It did not
become them (to use our Saviour's expression) to
'' cast the first stone." I shall here, sir, close my
observations in answer to those offered by the
gentleman of Virginia, to whom I have had oc-
casion to refer so often. Permit me, however,
before taking my leave of him, to express my
sorrow that he deemed it necessary, in ranging
the wide field he occupied, to visit Mount Ver-
non, and attempt to disturb the ashes of our po-
litical father. This circumstance was not re-
quired to prove that pre-eminence is often obnox-
ious; "and why must Aristides be called more
just than others ?" was asked by the envious Athe-
nian who voted for his banishn^ent. Another hon-
orable gentleman from Virginia asks my friend
from North Carolina why ne now mourns and
sighs over the Constitution, which he last year
assisted to violate, and insists upon it we did
wound the Constitution in putting down the two
courts of Kentucky and Tennessee? Sir, it has
been satisfactorily shown by my learned friend
from Delaware that the offices were not, in those
two instances, destroy ed^ but modified, and that
we did not take their offices from the judges, but
merely assigned them new duties. This, howev-
er, the gentleman from Virginia calls wounding
(he Constitution, and proceeds to say. you did de-
stroy two courts, and we will destroy sixteen.
What, sir, will he tell us that our hands are red
with the blood. of the Constitution, to justify his
imbruing his? Because he thinks we then vio-
lated the Constitution, will he now murder it?
Sir, it was by sounding the alarm about medita-
ted violations of the Constitution, and by gross
misrepresentations of our intentions, and reitera*
ted charges of not respecting the (Constitution,
that public opinion was vitiated, the public mina
misled, and the administration of our Govern-
*ment placed where it now is. But almost in the
moment of changing, when the present Adminis-
tration is in its gristle, it assumes the attitude of
a gladiator, attacks the Judiciary, violates the
rights of the judges, and says to us, you set the ex-
ample. Sir, had we set them the example, it was
a bad one, and it does not become them to follow
it; but we never gave any such examples; we
always reverenced the Judiciary as the bulwark
of the Constitution, and considered the rights of
the judges as the rights of all the people of Amer-
ica. It is said by the gentleman from Virginia,
that our devotion to the Judiciary establishment
makes us wince at any attempts to strip off* some
of its superfluous and expensive trapping, and
that we will not part with the Corinthian and
Composite pillars which have been added for its
decoration.
Sir, the Judiciary is, in the fabric of the Con-
stitution, not a Corinthian pillar, not any orna-
ment added by Congress. It is, sir, the ^rand
Doric column; one of three foundation pillars,
formed, not by Congress, but by the people them-
selves ; it binds together the abutment, is laid in
the foundation of the fabric of our Government,
and if you demolish it, the grand arch itself will
totter and the whole be endangered. We are
asked by the gentleman from Virginia if the peo-
ple want judges to protect them ? Yes, sir, in popu-
lar governments Constitutional checks are neces-
sary for their preservation ; the people want to be
protected against themselves ; no man is so absurd
as to suppose the people collectedly will consent
to the prostration of their liberties ; but if they be
755
HISTORY OP CONGRESS.
tOtj
H. or R.
Jtididary System.
F£BRUA.RT, 1SQ2.
not shielded by some Constitutitional checks they
will suffer them to be destroyed ; to be destroyed
by demagogues, who filch the confidence of the
people by pretending to be their friends; dema-
gogues who. at the time they are soothing and cajo-
ling the people, %with bland and captivating speech-
es, are forging chains for them; demagogues who
carry daggers in tl^ir hearts, and seductive smiles
in their hypocritical faces; who are dooming the
people to despotism, when they profess to be ex-
clusively the friends of the people. Against such
designs and artifices were our Constitutional
checks made to preserve the people of this country.
Will gentlemen look back to the histories of other
countries, and then tell us the people here have
nothing to apprehend from themselves? Who,
sir, proved fatal to the liberties of Rome? The
courtier of the people; one who professed to be
" the man of the people " who had willed his for-
tune to the people, and nad exposed his will to the
public eye ; a man who, when a Crown was prof-
fered to him, shrunk from the offer, and affected-
ly said, it did not come from the people. It was
Julius Csesar who prostrated the liberties of Rome ;
and yet Csesar professed to be the friend of Rome,
to be in fact the people. Who was it, that, in
England, destroyed the Representative Govern-
ment, and concentrated all its powers in his own
hands ? One who styled himself the man of the
people; who was plain, nay studiously negligent
m his dress; disdaining to call himself Mister, it
was plain unassuming Oliver; Oliver Cromwell,
the friend of the people, the protector of the Com-
monwealth. The gentleman from Virginia says
he would rather live under a despot than a Gov-
ernment where the judges are as independent as
we would wish them to be. Had I his propensi-
tiesj I, like him, would fold my arms and look with
indifference at this attack upon the Constitution.
It has been my fortune. Mr. Chairman, to have
visited countries governed by despots. Warned
by the suffering of the people I have seen there, I
am zealous to avoid anything which may estab-
lish a despotism here. It is because I am a repub-
lican in principle and by birth, and because I love
a republican form of Government and none other,
that I wish to keep our Constitution unchanged.
Independent judges, at the same time that tney
are useful to the people, are harmless to them.
The judges caunot^impose taxes ; they cannot raise
armies ; they cannot equip fleets ; they cannot en-
ter into foreign alliances : these are powers which
are exercised without control by despots; and as
the gentleman from Virginia does not hold des-
pots in abhorrence, he and I can never agree in
our opinions on Government.
Whether another honorable gentleman from
Virginia (Mr. Randolph) has derived all the ser-
vice from his sling and his stone he had expected,
or whether he feels acquitted of his promise, and
now thinks himself capable of prostrating the Go-
liah of this House, armed cap-a-pie with the Con-
stitution of his country, I cannot conjecture.
Whether he has discovered the skill and the prow-
ess of David, or whether he is likened to him only
by the weapons he wars with, it is for the Com-
mittee to judge; for myself 1 must say, that his
high promises had excited expectations which k
me have not been realized, and when the gentle-
man sat down I was sorry to find my objectiooi
to the bill on your table undiminisheo. 1 say sor-
ry, for I can lay my hand upon my heart, and in
tne fullness of sincerity declare, there is notbio^l
desire more anxiously than to be convinced by
gentlemen that this measure is not unconstiiutioih
al. It is not competent for us to decide w^here tbe
power of judging shall be placed, as is supposed
oy the gentleman from Virginia, who says theo&ir
question is where this power shall be placed. Sir.
the true question is where was this power pkceii
by the Constitution ? And the honest answer will
be, that it was obtained to the Jodiciary by the
will of the people; their power is paramount to
that of the Legislature, and revocable only br the
authority that gave it. In deprecating the adop-
tion in this country of the common law of Eog-
land, which was brought to it by our ance^ion.
and the principles of which are the fundamental
maxims of our liberties, the gentleman from Vi^
ginia has attempted to show the inconveniences
resulting from its uncertain rules, and has noiied
the case of Williams, which occurred in CooDec-
ticut. Sir, I am surprised that a genlieman so
correct as he generally is. should have fallen idio
the inaccuracy he has. The case of Williams !s
a notorious one, and it was not a prosecution at
common law. The history of it is, that vhea
General Pinckney was at Faris he learned thai
some of the privateers which were then cruising
against the Amirican commerce were commanded
by Americans. As soon as this information reached
Congress, they passed a law to prohibit our citi-
zens from going into the service of any of the bel-
ligerent Powers. Williamscontinued to command
a French privateer and he had captured many cf
our vessels ; he was afterwards brought into Con-
necticut, and there tried and punished ; not under
the common law, as the gentleman from Virgioii
suppo.sed, but under our statute, under the law we
passed in 1798.
The gentleman has asked whether, if we had
created an army of judges, and given them mon-
strous high salaries, it would not be right to k^
peal the law ; that if the power exists to repeal
any law which might have passed on this subject
it might not now be used ? and has been pleased to
say, we would have created more judges and gives
them higher salaries, if we had not wanted nerves;
and tells my honorable and learned friend from
Delaware that we were restrained by the 5arae
feebleness of nerve which induced us at the Prt>9-
dential election to put blank votes into the hallo:
box. Sir, my friend from Delaware does want
that sort of nerve that some gentlemen now dis-
cover. Although he is as brave as he is wise, ret
in living without fear he will live without re-
proach, and never make himself liable to the
charge of prostrating the Constitution of his coun-
try ; for such a work it is true he has no nerve.
The observations of one honorable gentleouin from
Virginia (Mr. Giles) being now reiterated by
another respecting the course of conduct we pur*
757
HISTORY OF CONGRESS.
758
February, 1802.
Judiciary System,
H. opR.
sued at the Presidential election, shows that time
has DOt abated the resentment of Vir£riiiia which
we excited by our not voting for the Virginia can-
didate. Permit me here to declare, sir, that in
reviewing all my public conduct, I can discover
DO one act of which I am more satisfied than my
having put a blank vote into the ballot-box. Mucn
has been said on this subject. My friend from
Delaware and myself have been denounced by the
jacobins of the country; at their civic feasts, and
in their drunken frolics, we have been noticed.
European renegadoes, who have left their ears on
the whipping posts of their respective countries, or
who have come to this country to save their ears,
have endeavored to han^ out terrors to us in the
public prints; nay, sir, circular letters have been
diffused through the country, charging us with
the intention of preventing at one time the elec-
tion of a President, and at another with the design
of defeating the vote of the Electors and making
a President by law. This was all a calumny, and
as it relates to the South Carolinia delegation, I
declare they had no intention of defeating the pub-
lic will; they never heard of any project for
making a President by law; they had but one
object in view, which they pursued steadily as
long as there was any prospect of attaining it.
The gentleman from Virginia and the gentleman
from New York hacf an equal number of votes ;
we preferred the latter; we voted for him more
than thirty times, but when we found our oppo-
nents would not unite with us, and seemed obsti-
nately determined to hazard the loss of the Con-
stitution rather than join us, we ceased to vote;
we told them we cannot vote with you, but by
ceasing to vote, by using blank votes, we will give
effect to your votes; we will not choose, but we
will suffer you to choose. Surely, Mr. Chairman,
there was nothing in all this which had any as-
pect towards debating the public will. Why I
did not prefer the gentleman who ultimately was
preferred, has already been mentioned. This is a
subject on which I did not expect to be called
upon to explain; but the gentlemen from Virginia
have called, and it was necessary to answer. Per-
mit me to state, also, that besides the objections
common to ray friend from Delaware and myself,
there was a strong one which I felt with peculiar
force. It resulted from a firm belief that the gen-
tleman in question held opinions respecting a
certain description of property in my State, which,
should they obtain generally, would endanger it,
and indeed lessen the value of every other. Fol-
lowing the example set by his colleague, the gen-
tleman from Virginia has bestowed much censure
on the past Administration, and made it a serious
charge against them, having appointed under this
law a gentleman of Maryland, who he says was
not with us formerly, but unfurled his standard
in the service of his King, and fought against his
countrymen, whom he then deemed rebels. I
did not expect, Mr. Chairman, to hear this obser-
vation froQi one of the friends of the Executive.
Since the fourth of March last, I thought philos-
ophy had thrown her mantle over all that had
passed ; that sins were to be forgotten and forgiven,
and to prove the sincerity of this forgiving spirit,
sinners were to be distino;uished by Executive
favors. One would have thought so in reviewing
Executive conduct; where persons had been im-
prisoned and fined under our laws, they we know
were released ; where fines had actually been paid,
the officers of Grovemment had been ordered to
return them, and not only tories had been ap-
pointed to office, but old tories, 'rank old tories,
who had been banished. The present collector of
Philadelphia, for the internal revenue, has been
appointed since the fourth of March last, and
although he never, like the gentleman alluded to,
shivered lances in the service of his King, yet he
was actively employed in the more safe service
of giving information to the British Generals, and
marching before Sir William Howe, decorated
with laurels, conducted him into the metropolis
of his native State. Sir. there are many instances
of this kind. Have gentlemen forgotten the young
Englishman who was so busily employed here
last Winter during the Presidential election, that
in seeing him one would ,really have supposed
him not only a member of this House, but, like
him of Tennessee, holding an entire vote at his
command? This youngster was sent out here
by some merchants in England to collect debts
due to them in this country, and his father, whose
tory principles carried him from America early
in the Revolution, is now subsisting on a royal
pension; and this young man has been appointed
our Consul at London, and the former consul, a
native and staunch American, whose conduct had
been approved by merchants generally, has been
turned out to create a vacancy. The gentleman
from Virginia has repeated the observation of his
colleague, that the people are capable of taking
care of their own rights, and do not want a corps
of judges to protect them. Human nature is the
same everywhere, and man is precisely the same
sort of being in tlie New World that he is in the
Old. The citizens of other Republics were as wise
and valiant and far more powerful than we are.
The gentleman from Virginia knows full well,
that wherever the Roman standard was unfurled,
its motto, ^^Senalus Populuaque Bonmni^^^ pro-
claimed to a conquered world that they were gov-
erned by the Senate and the people of Rome.
But now, sir, the Roman lazzaroni, who, crouch-
ing at the gates of his Prince's palaces, begs the
oftals of his kitchen, would never know that his
ancestors had been free, nor that the people had
counted for anything in Rome, or that Rome
ever had her Senate; did he not read it on the
broken friezes and broken columns of the ruined
temples, whose fragments now lie scattered over
the Roman forum !
Sir. the mournful histories of the Republics of
Rome and Greece are not the only beacons which
warn us of the danger of instability and innova-
tion. All Europe was once free. But where now
is the Diet of Sweden ? Where are the States
of Holland and Portugal, and the Republics of
Switzerland and Italy? The people of those
countries were once free and happy, but their Gov-
ernments, for want of some protecting check, some
759
HISTORY OF CONGRESS.
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H. or R.
Jttdidary System,
Febbuart. Wj^.
inherent principle to defend themselves, have all
been subverted ; they have all travelled the same
road ; it is as plain as a turnpike; it is pointed
out by the ruins of other Republics; everywhere
the same causes have produced the same effects.
The Government gets into the hands of theorists,
and they make inroads on the Constitution, per-
haps with honest views ; but these innovations are
precedents to sanction subsequent innovations of
men with bad views, and despotism succeeds to
anarchy. This is what we learn from every page of
history. Let us profit by these monitions; let us
take experience as our guide. We all have one
common interest in this Constitution, let us then
leave it untouched ; if you touch, others will ruin
it; what has happened elsewhere will happen
here : these gentlemen are not masons in politics
and government; they cannot build up again;
they are mere sappers and miners, and if they pull
down this mild Government, those who come af-
ter them will build up a despotic one. If you
will not reject this measure, postpone it for a year ;
the people want no change of our Constitution,
give them but time, and my life on it they will
say so. The President will respect public opmion ;
give time for its expression, and the President will
subordinate his desire to destroy, to theirs to pre-
serve. Is there no ground upon which gentlemen
will meet us and compromise? If the remnant
of the Army is disliked, we will abolish it ; if a
further reduction of our little Navy is desired, we
will reduce it ; we will join in abolishing the in-
ternal revenue ; sir, indeed, there ia no sacrifice
we will not make to prevent the sacrifice of this
Constitution. Gentlemen say the Constitution
will live. Sir, it may last our time, but it will drag
out a miserable existence after receiving this
wound ; it will be mortal ; inflict it, and you doom
it to ruin : like the best and most lovely part of
God's creation, violate, and you destroy it. As has
been observed in the House above, by a coun-
tryman and honorable friend of mine, it will be
with this Constitution as with a confined fluid, if
a drop of it escapes, the leak through which it
steals will soon become a breach by which the
whole will pass away. This bill is an egg which
will produce a brood of mortal consequences. Al-
though the blow aimed at the Constitution will
not immediately destroy, the injurious effects will
be immediately felt; it will soon prostrate public
confidence; it will immediately depreciate the
value of public property. Who will buy your
lands? Who will open your Western forests?
Who will build upon the hills and cultivate the
valleys which here surround us? He must be a
speculator indeed, and his purse must overflow,
who would buy your Western lands and city lots,
if there be no independent tribunals where the
validity of your titles will be confirmed. Have
gentlemen forgot the sales of public lands made
in France? The national domain was sold for
assignats; after they had been all sold and one
instalment was paid, the terms of payment were
changed, and the purchasers were obliged to pay in
specie or relinquish the lands. Sir, look at home
and we see examples to prove the necessity of an
independent Judiciary. Have we not seen a Start
sell Its Western lands, and afterwards declare df
law under which they were sold made null u-j
void? Their nullifying law would have beet
declared void, had they had aa mdependc::
Judiciary.
Whenever in any country judges are dependes*
property is insecure. An honorable gentlemu
from Kentucky says, he does not want to seek n-
amples across the Atlantic. Sir, is this wise.'
Are we to shut our eyes to the light of history ici
turn away from the voice of experience ? Sir.
the untutored Indian marks on his tomahawi
ffreat events as they pass, and argues what Til
happen from knowing wnat has iiappeDed ; aad
shall we travel on without noticing the finger-
boards erected by historians for our secuntr 1 The
gentlemen censures our having noticed Fraoce.
and read a passage from a speech of oar iUostrious
Washington, where he called the Prench a gre^t
and wise people. What has been the fate ot'tbis
gallant people? Where is their constitutioc?
We have seen Liafayette in the Champ de Man
at the head of fifty thousand warriors, who. wixi
one hand grasping their swords and the other laid
on the altar, swore, in the presence of Al nightr
God, they never would desert their constiimic^.
Through all the departments of France similar
pledges were given. Frenchmen received their
constitution as the followers of Mahomet did the:
Koran, as though it came to them from Heaven
They swore on their standards and their sabres
never to abandon it. But, sir, this constitniioi
has vanished ; the swords which 'were to haw
formed a rampart around it, are now worn by the
Consular janissaries, and the Republican sraiui-
ards are among the trophies which decorate the
vaulted roof of the ConsuPs palace.
Respecting the expediency there "was for pas&-
infir the law which gentlemen now seek to repeal
I shall say nothing, as my honorable friend troo
Delaware has entered into a most ample detail cf
it. Indeed, sir, he travelled through so exteasire
a field of inquiry respecting the unconstitniioQ-
ality of the repeal, as well as of the ezpediencr
of having passed the law, that he has greatly nar-
rowed the ground for all who follow him : b.^
range was commensurate with the extent of k:<
mighty mind and with the magnitude of the sub-
ject ; a subject, sir, let me tell the gentlemen, ihsi
is perhaps as awful a one as any on this side the
ffrave. This attack upon oar Constitution wiJ
form a ffreat epoch in the history of our Govern-
ment. In the important changes we read of in tbf
systems of other Governments, we find some public
benefit to have been intended ; something plausi-
ble at least was offered in justification. But ber«.
" when we are in the full tide of experimental
success," a revolution commences without acr
necessity of pretence. It is not to he presumr<:
that the Executive has been incited to thisv by ttf
paltry consideration of saving thirty thousand do«'
lars. He has proved by his expenditures, since
the fourth of March, that our nation is not in great
want of money. The fact is, sir. that so good
was the management by the past Administratioa
761
HISTORY OF CONGRESS.
762
February, 1802.
Jttdiciart; System,
H. OP R.
of our fiscal concerns that our Treasury overflows
with money ; to this cause may be ascribed some
of the great expenditures made during the recess,
and which to me appear to have been perfectly
useless ; but perhaps they were not so. Although
the Senate, last year, appointed a Minister to
France, immediately upon its rising the Presi-
dent appointed another honorable gentleman (who
now sits near me) Envoy to carry over the treaty ;
although the French had called in their cruisers,
and for us it was a time of profound peace, this
gentleman was sent oyer in a man-of-war, at an
enormous expense. If gentlemen will look at the
printed report of the Secretary of the Navy for the
last year, of money necessary to be appropriated,
they will read, in page fifty-two, that the expenses
of the ship Maryland are estimated, for a year, at
$37,269 77. The Maryland was seven months in
carrying our Envoy, waiting his orders, and re-
turDing to America ; and for seven months the
expense of this ship would be twenty-three thou-
sand four hundred and seven dollars. Perhaps
all this was necessary on the part of the Execu-
tive. I barely state the fact Another which I
will notice is, that without waiting for the final
ratification of the treaty, or for Congress to make
appropriations for its fulfilment, the Executive
had the ship Berceau repaired, to be delivered up
to the French Government, at the enormous ex-
pense of thirty thousand dollars. Besides this,
the officers were paid, when at Boston, six dollars
per day. How does all this agree with assailing
the most precious part of our Constitution to save
a little money ? But if I am under any delusion,
and we are not rich ; if we want to save, and must
save money, let us turn to something else ; let us
begin with ourselves. The Speaker of this House
receives twelve dollars a day, give him six ; we
receive six, let us be content with three : on our
side we cheerfully agree to this reduction. If gen-
tlemen will look at the catalogue of expenses, un-
der the head of "Legislature," they will find a
number of items which, if summed up, will amount
to $193,470 ; let us retrench, as I have proposed,
and save to the nation one half of this sum ; we
will, in doing so, save nearly $ 100,000 a year.
Sir, gentlemen may depend upon it the people
of this country are too intelligent to ascribe tnis
measure to the mere desire of saving a little mo-
ney ; they will view it as the vengeance of an
irritated majority. I conjure gentlemen to cele-
brate their victory by more harmless sports. Let
them triumph over us, but not by immolating the
Constitution ; let them beware, that in erecting a
triumphal arch for the celebration of their success,
they do not dij^ a grave, and decree funeral rites
for our Constitution. I repeat a^in, that this is
not a way to save money. If saving really be the
object, let our opponents procure it by more gen-
tle means. To attempt saving a little monev by
injurioff the Constitution, would be like taxing
from the foundation to patch the roof; like
digging up for use the roots of a tree, instead of
lopping off the boughs. To the confidence in-
spired by the independence of our judges are we
indebted for much of our national prosperity.
Pass this law and the tribunals in America will be
like those of France, as described by the most
brilliant scholar and sagacious statesman of the
age. On the subject of the French judges, Mr.
Burke has said : " In them it will be vain to look
' for any appearance of justice towards strangers ;
' towards the obnoxious rich ; towards the minor-
' ity of routed parlies ; towards all those who in
' the election have supported unsuccessful candi-
' dates. The new tribunals will be governed by
* the spirit of faction." I feel myseli much hon-
ored, Mr. Chairman, by the great attention the
Committee have given to my observations. They
have, I fear, exhausted all your stock of patience.
I find they have exhausted all my strength ; but
the magnitude of the subject will, I trust, be an
apology for their length. Permit me here to ex-
press my sorrow at hearing the declaration of an
honorable gentleman from Pennsylvania, (Mr.
Grbog.) who yesterday, after joining in the call
for the question, rose, and said it was useless to
continue the debate, as the minds of the majority
were fully made up. It seems the gentlemen are
not open to conviction, and that they have deter-
mined to violate the sanctuary. Myself and my
friends will not, however, be deterred by this
menace. We have always been the sincere
friends of this Constitution, and we will attempt
its defence as long as we have the means of mak-
ing it. We will struggle to the last ; if we cannot
command success we will endeavor to deserve it.
If the friends of the Constitution are subdued by
numbers, the Ministerial phalanx, in bursting into
the temple, will, I hope, find them all at their
posts ', they will be in the portico, the vestibule,
and around the altars, grasping, grappling the
Constitution of their country with holds of death,
and with nollumua mutari on their lips.
Mr. Dawson. — When we are told, sir, that we
are about to pass a law which violates that Con-
stitution which we have all sworn to support ;
when this is echoed over and over again from
everv quarter of this House, I can no longer, sir,
indulge that disposition which I have to be silent;
and I now rise to enter my protest. When we are
told, sir, that we are about to adopt a measure
which will endanger the peace and happiness of
our country, it behooves us to summon all our
wisdom, to investigate the subject with all delibe-
ration, and to ascertain clearly those ereat princi-
ples which, while they guard our Constitution,
secure the rights, the liberties, and property of the
Eeople. Such, sir, is the language which we have
eard for the last ten days from gentlemen on the
other side of the question, and such, sir, 'is the
course which has been adopted by us. I believe,
sir, that there never was any subject in any coun-
tr^i and at any time, more ablv discussed than
this has been in the other brancn of the Legisla-
ture. I believe, sir, that few subjects have been
more fuUy investigated than this has been in this
House. Sir, the arguments used by an enlighten-
ed and venerable gentleman from Massachusetts,
on my right; by an honorable gentleman from
North Carolina, on my left, and by several of my
colleagues must still be fresh in the recollection
763
HISTORY OF CONGRESS,
764
H. OP R.
Judiciary System.
February, 1802.
of every gentleman of this Committee. Permit
me to say, that their conclusive strength has not
been impaired by anything which has fallen in
reply, nor do I mean to enfeeble them by any ob-
servations of mine, either as to the expediency or
constitutionality of the measure.
Sir, in a field extensive as this, it is more than
probable that some gleanings do still remain ; the
collection of those I shall leave to other gentle-
men, more ingenious and more industrious than
myself, and will beg leave to reply to some of the
observations of a collateral nature, which have
just fallen from the gentleman from South Caro-
lina. Think not, Mr. Chairman, that I mean to
notice those which may be considered of a person-
al nature ; the respect which I have for you, for
this Committee, and for myself, all forbid it; there
are others to which I will advert.
The dreadful j)icture which has been drawn by
that gentleman of the situation of our country,
should we pass this bill, will for a long time haunt
the recollection of every c^entlemen of the Com-
mittee, and, if true, disturb the peaceful slumbers
of that honorable gentleman. Whether he has
drawn the picture to the life, or whether it is too
highly colored, it rests with this Committee to
determine. To a gentleman, sir, of his fancy, of
his imagination, the task was easy, and I may
add, it was a very unnecessary one. It is admit-
ted by us. that the Constitution of our country is
the ark of our covenant ; the rock of our salva-
tion, on which political storms and the rage of
party may beat, and subside. This is the doctrine
for which we have always contended ; which we
support on this day ; and could the friends of this
repeal be taught to doubt the constitutionality of
the measure, I am bold to say, they would imme-
diately withdraw their support. Nay, sir, for
myself, I avow, that was I not persuaded that the
public good and the public will do imperiously
command the repeal, sympathy and a rqgard for
the feelings of men, wno have been invited into
office by a public act, and sanctioned by a public
appointment, would induce me to oppose this bill.
But believing as I do, that the public will and the
public good do command the repeal, and that the
Constitution of our country does not forbid it, I
shall vote in favor of the repeal, and lend to it my
feeble aid.
Mr. Chairman, in the course of this debate, a
new character has been introduced, and has occu-
pied much of our attention ; it was presented to
us by the honorable the mover of the amendment
from North Carolina; it has been invoked and
pretty freely used by[ his neighbor, who has just
sat down. It is a spirit, sir. Mr. Chairman, you
will confess, that there is some difficulty in meet-
ing an opponent of this sort, and in answering ar-
guments drawn from this source. I believe it best
done by declaration. For myself, then, I declare
that spirit of which we have heard so much, that
spirit of innovation which gentlemen so highly
deprecate, is that spirit which I adore.
It is not. Mr. Chairman, that spirit which, fear-
ful of itself, gave to us an Alien and Sedition law,
thereby driving the invited stranger from your
shore, and rendering each neighbor suspicious of
the other.
[t is not that spirjt, sir, which, in defiance of a
positive injunction of our Constitution, placed a
gag on our press, to prevent an investigation of
its own proceedings. It is not that spirit, sir.
which threatened a transportation of your citizens
to their enemies, and the humbling of them in
dust and ashes, because they dared to express their
sentiments on their own concerns. In fine, sir, it
is not that spirit which, by the creation of useless
and expensive establishments, loaded your citizens
with taxes and stained your country with insur-
rection. No, sir, it is the counter spirit I It is
that spirit which places confidence in our fellow-
citizens, and fears not the machinations of those
who may visit us; which pronounces freedom to
religion; freedom to the press; which restores
economy in your public expenditures, thereby
renderinnr to labor its full reward. It is that spirit,
sir, whicn has required the repeal of the obnox-
ious laws I have mentioned, and of manv more;
and which now commands the repeal of tnislaw;
it is the voice of the people !
But, sir, gentlemen, not content with hunting
down that spirit in this country, have, in the
whirlwind of their fury, crossed the Atlantic and
sought it in a far distant world. Sir, the time has
been, nor is it far distant, when it was the rage,
the fashion of the day to pour forth abuse on eve-
ry act of the Frencn Republic, from the com-
mencement of the revolution ; and. perhaps, sir.
the aggressions of that nation on us might seem
some justification. Often, sir, have 1 heard in this
House woful lamentations for a murdered King.
as gentlemen were pleased to call him. Often
have I seen their warmest sensibility excited for
the violated sanctity of the Holy Father, as they
were plei^sed to term him Whatever might have
been tne passions of gentlemen at that day, I did
hope that they would have subsided at this, when
we have made a peace with that Republic ; and.
let it here be impressed on the minds of every
gentleman of this Committee, a peace on the very
terms which the political friends of these gentle-
men were pleased to prescribe ; terms, which thus
prescribed, have already brought many petiiioos
to your table, and will, I fear, draw much money
from your Treasury.
How far observations of the nature of those to
which I have alluded, comport with the dig^nity
of the National Legislature ; how far they give
respectability to our proceedings, or policy to our
Government, I will leave to those gentlemen who
use them to determine, and will notice some of
the remarks which fell from the gentleman from
Delaware.
Sir. that gentleman, in vindicating the Judici-
ary ot the United States, has been pleased to whirl
his censures against the Executive department;
by the first, he declares, that there has not been a
single act of persecution, to his knowledge, though
many by the latter; that observation has been an-
swered by one of my colleagues, and need not
now be adverted to by me. I will only express,
that I feel much pleasure at that gentleman's ten-
765
HISTORY OF CONGRESS.
766
Febrdart, 1803.
Judiciary System.
H.orR.
der regard for these persecuted individuals. But
the gentleman has not been content in censuring
the conduct of the Executive ; he has come upon
this floor xnd cast out suspicions, at least, on the
conduct of many gentlemen, who were members
on a f^ery memorable occasion. Sir, when these
observations were made, I own to you, they did
excite my astonishment; I did not expect them
from that quarter. It is known to every gentleman
of this Committee, that that gentleman represents
a State, and that he always is a very efficient mem-
ber on this floor. It will be remembered by many
now present, that on a very memorable occasion,
whicn. with him. I do believe the people of this
country will long remember, that gentleman took
a very distinguished, zealous, and persevering
part. By a reference to your Journals, it will be
found that it was not until the 17th day of Febru-
ary, when, on the 36th ballot, Thomas Jefferson
was declared to be elected President of the United
States ; on inquiry, I find that, on the said X7lh
day of February, James A. Bayard was nomi-
nated Minister Plenipotentiary to the French Re-
public. Nay. I find more, that this nomination,
although not nanded to the Senate until the 17tb,
was dated the 13th. two days after we went into
conclave ; and was not confirmed until the 19th,
two days after we came out. Sir, in making this
statement, 1 mean not to impeacli the motives or
the conduct of the gentleman from Delaware ; the
bigh opinion which I entertain of his political
morality, and the regard which I owe to truth
md to candor will preclude it ; neither do I mean,
In making the application, to follow the example
cvhich he has set roe, and to use towards him,
ilthough present, the terms which he has been
pleasea to use towards others, although absent ;
I he respect which I owe to myself will forbid me
to do that. I mean not to say, as he does, when
speaking of our Minister at the Court of Spain,
:hat I am yet to learn that Mr. Bayard is a man
}f talents, and who has rendered services; neither
lo I mean to consider his observations as injuring
he reputation of my valued friend from New
^ork ; but I mean to say what I do believe, that,
lad the present President approved of that nomi-
laticn made by the last, the persecuted veteran
v'ould not have received the sympathy of that
gentleman, on this floor, at this day ; nor should
ve daily have heard fulminations against the
Z!hief Magistrate of our country, and philippics
gainst men pre-eminent for their talents and vir-
ues.*
Yes, sir, the eentleman has issued a dreadful
ulini nation, indeed ; he has told us ^* that the day
will come, he trusts in God it will come, when
* Upon a snbflequent day, Mr. Dawson stated, what
le considered due to the genUeman from Delaware and
o his own character, to declare, that he never person-
llj knew any act of the gentleman from Delaware
nanifesting his willingness to continue as Minister to
he French Republic under Mr. Jefferson ; that wbat-
ver impressions of that kind had been made on bis
lind by others, were now removed by the positive as-
urances to the contrary, made by Mr. Bayard to him.
^ our Chief Magistrate will be responsible, when
* he will answer for his conduct." 1 was somewhat
at a loss, and I still am, to know what the gentleman
meant by this ejaculation; did he mean it as mere
declamation? This lean scarcely think. Did he
mean it as a discharge of that gall which may
canker near his heart? If he did, I sincerely con-
gratulate him on his deliverance. Or did he, in a
more benevolent spirit, mean to express a hope,
that our Chief Magistrate will live until that day
when he shall be responsible to the people in that
way which the Constitution points out? If this
was his meaning, I most devoutly join him in his
prayer ; and on tliat day I believe it will be found,
that the living of information to the nation on the
state of tne Union ; that the giving of information
to this House, on a subject which he has thought
proper to recommend to our consideration, will
not be read among his political crimes. Perhaps,
though, Mr. Chairman, the honorable gentleman
meant something else ; perhaps, he meant to say,
that the President of the United States ought to
be impeached for this his conduct ; if this was his
meaning, that gentleman knows full well that the
door is open, that the Constitution points out the
mode to him, nor do I doubt his zeal to adopt ;
the Chief Magistrate of your country will advance
to meet it ; ami I am bold, sir, to believe, that
while he shall pursue that line of conduct which
has heretofore marked his administration, it will
be as difficult to establish a tribunal to rob him of
the honors which his fellow-citizens have thought
proper to confer on him, as it was to erect one to
prevent his taking possession of them.
Sir, it is with pain I heard some observations
during this discussion, to which I turn with reluc-
tance, but which seem to demand a reply. Gen-
tlemen, while they reprobate one spirit, seem to
be possessed of another, a more evil one. We have
heard of groans^ sighs, and tears, over our pros-
trated Constitution ; we have heard of disunion,
civil war, and of blood. A whole host of the evils
of the enemy to mankind have been conjured up
to arrest the havoc of the assassin, as they are
pleased to call us.
I demand to know, sir, what gentlemen mean
by observations of this kind ; are they addressed
to our fears ? I trust, sir, they know us too well
to believe that an appeal of that sort can have any
impression, while we are pursuing what we deem
the public good. And yet, sir, I am at a loss to
conjecture, for what other purpose they could be
made. Whatever that purpose may be, I deem it
proper for me at this time to declare, and in mak-
ing this declaration I believe I shall speak the
sentiments of all those with whom it is my pride
to associate, that we consider the Constitution of
our country as the greatest of all good, and the
wilful violator of it. as the greatest of all traitors;
that we mean to administer it according to its fair
construction, regardless of the clamors of others :
that we view a disunion of the States and civil
war as the greatest of all human calamities, which
are so far hidden in the veil of futurity that no eye
can penetrate them, or mind think or them with-
out horror ; that we mean, sir, to guard our Con-
767
HISTORY OP CONGRESS.
H. or R.
Judiciary System,
February. 1&<>2.
stitution and to cherish our Union. But, sir, should
the awful day, which Heaven avert ! ever arrive,
when, by the folly of some and the madness of oth-
ers, tnis fair fabric, the world's best hope, shall
be endangered ; when a discontented minority of
this House, or a discontented member of a minor-
ity shall join the standard of the judge in opposi-
tion to the law, and thereby destroy the peace of
our country ; I say, sir, should that day ever ar-
rive, I trust with confidence that the friends to the
bill before you ; the friends to the Constitution of
their country, conscious of the integrity of their
views and the soundness of their principles, will
be found as ready to meet danger, and as firm in
supporting what they consider the true interest of
their country, as their vaunting opponents.
I solicit your pardon, sir, for these hasty and in-
coherent observations ; they have been called forth
by what fell from the gentleman from South Car-
olina, and by a recollection while up, of some of
the many observations made bv the gentleman
from Delaware. I will close tnem, sir, in reply
to the wish of the gentleman, who has just sat
down, for a delay, by offering my congratulations
to you, sir, and to this Committee, on the time
and circumstances under which this great question
must be met. and must be decided. Whatever that
decision may be, I devoutly hope that it will pro-
mote the good of our common country. Whatever
that decision may be, it will not be considered as
the result of our fears, nor will the friends to the
repeal be charged with an improper hostility to the
present Administration. The days of terror and
alarm are past, and I trust for ever. No longer
does the sound of foreign invasion and domestic
treason assail our ears, and serve as arguments for
the violation of the Constitution of our country.
No longer, sir,do the dangersof the commonwealth
authorize infringements on that sacred in^rumeut;
peace and confidence are restored, and while the
friends to the repeal rejoice at this state of things,
while they mean not to violate the Constitution of
our country, they mean to prevent a useless expen-
diture of public money, and to guard against an
increase of Executive power, whether that power
shall be continued in the hands of the present Chief
Magistrate, or transferred to some other person.
Mr. Griswold. — Mr. Chairman, I make no
apology for entering upon the discussion of the
subject now before tne Committee, because I have
considered the first section of the bill on your ta-
ble, and which the motion of my honorable friend
from North Carolina proposes to strikeout, as im-
plicating not only the dearest interest of the peo-
ple of this country, but directly ])rostrating the
fairest feature of the Federal Constitution. And
I believe it to be the duty of every man, every
friend to the Constitution, who has a right to be
heard on this floor, to raise his voice against a
measure so ruinous and destructive.
I do not however expect, nor am I indeed vain
enough to imagine, after the extensive and criti-
cal view which has been taken of the subject, that
it will be in my power to add much to what has
been already urged. This consideration however
presents to my mind no objection to the claims
of being heard ; for although the argumeDt> of
my friends remain unanswered, yet upon an Deci-
sion so important as the present. 1 deem it propc
that these arguments should be repeated over ac;!
over again, that no gentleman may hereafter ^ar
when the passion of the moment has subsidfi
that the objections to this measure were not ^m.-
ciently urged and explained.
This subject has presented to every ^entlemu
who has examined it, two questions for con^idtc-
ation : First, can the Legislature by the Consutj-
tion destroy the judges of the circuit courts 'a
repealing tne law which authorized their appoio:-
ment?
Second, admitting the power to exists is it ex-
pedient to exercise it upon this occasion ? I shal!
not attempt to deviate from this natural airaD^
ment, but in the beaten track of those who ijare
gone before me pursue the same objects.
The first of these questions is by far the most
important, and if decided one way, will necessa-
rily preclude all examination into the other ; for
if Congress cannot, without a violation of the Con-
stitution, destroy the judges as proposed by this
bill, it is useless to inquire into the expediency of
doing it, for nothing can be expedient which is
repugnant to the Constitution.
^ut the great importance of this question. ziA
the necessitv of considering in some stage of tae
discussion tne comparative merits of the twos>>-
tems under which the courts have been organized
will be my apology for taking the same coarse
which gentlemen have taken before me, and di-
recting my remarks in the first place to what bss
been called the expediency of the measure.
The mere expediency of maintaining the s?^
tern under whicn the courts were organized by ±t
law of the last session ^ must depend on a compan-
tive view of the provisions of that law, with the
system which the present bill proposes to rehire.
And here I must be permitted to say, that the
provisions and effects of the two systems were, a
few days ago, so fully examined, and completely
stated by my friend from Delaware, that it is im-
possible the subject should be at this time mbua-
derstood : indeed, sir, no gentleman can misander-
stand it, or resist that conclusion which has betz
drawn by my friend in favor of the law of the La«:
session.
The defects of the former system under which
the courts were organized had been obvioas f<ir
many years, and during the whole period withiz
which the last law was under consideration, o?
gentleman attempted to defend itj it was ihes
well understood, and universally admitted, iha:
under the old arrangement, the Judicial power
could not accomplish the objects for which it
was designed ; and the necessity of a change had
become too apparent to be denied : the only ques-
tion which then divided the opinions of those w:il>
were disposed to execute with good faith the pro-
visions of the Constitution in relation to the Ju-
dicial power, was, whether it was proper to a J-
here to the principle of the old system, and fill up
the outline which had been drawn by adding :«.•
the judges of the Supreme Court, or, fearing those
769
HISTORY OF CONGRESS.
770
February, 1802.
Judiciary System,
H. ofR.
judges to their proper jurisdiction, to organize a
new circuit court with adequate powers.
The great and prominent defects of the old sys-
tem, and which have been so fully pointed out
upon this occasion, were not only understood but
acknowledged. The absurdity of placing the same
judges in the court of appeals to decide in the last
resort upon judgments rendered by themselves in
the courts below, was seen and felt. The effect
of associating a district judge with a justice of the
Supreme Court upon the circuits, could not escape
the most cursory observer; and experience had
coDfirmed the opinion, which has been long enter-
tained, that such an association was unnatural,
and whilst it destroyed the dignity of the district
judge, necessarily lessened the respectability of
tlie conrt itself.
The constant changes of judges from one circuit
to another was also found to embarrass the busi-
ness of the courts, and particularly in matters of
form and practice: and the immense extent of
country throu|;h which the judges were obliged to
travel on the circuits ; the accidents to which they
were exposed, and the failure of courts, not only
within the recollection of the members of the
House, but proved by the laws which had been
passed to revive the suits which had been discon-
tinued from these causes, all united to satisfy gen-
tlemen at that time that a new arrangement was
indispensable. Indeed, sir, every gentleman, who
has been in the least acquainted with our courts,
must have seen the great delays and vexations
which have arisen to suitors from the causes which
have been mentioned; and that in many cases
those individuals who were entitled by the Con-
stitution to trials in the national courts, and were
desirous of obtaining them, were compelled to seek
for justice in the State tribunals.
There is no axiom better understood in this
country than that a delay of justice is a denial of
it; and whilst the old arrangements existed, al-
though you proffered justice to your citizens and
to foreigners who demanded it in your courts, yet
in effect, by the embarrassments and delays to
which that arrangement exposed them, justice
was but a name ; it was a mockery, from which
they were compelled to run away with disgust.
It is true, that there was a description of per-
sons within the United States, and perhaps within
the walls of this House^ who were disposed to
prostrate in effect the national courts, and transfer
to State judicatures the whole Judicial power. To
persons of this description it is obvious that every
proposition Trhich was calculated to improve the
organization of the Federal courts, would be highly
displeasing", because they knew full well that when-
ever the national courts should be so organized as
to offer to suitors speedy and certain justice, the
business of those courts would be increased, their
influence and their character more highly re-
spected. But the wishes of those gentlemen did
not prevail. It was then believed, and the same
opinion must always prevail with all well in-
formed men, that a reputable and independent
national Judiciary is equally necessary for the
preservation of the Government, and the fair ex-
7th Con. — 25
ecution of the Constitution. The absurdity of re-
lying on State justice for the execution of our
penal laws, or the laws which relate to revenue,
cannot be overlooked ; and in respect to private
suits, it is well known that the Constitution has
guarantied to citizens of a certain description, the
right of trying their causes in the national courts ;
and you cannot, without a violation of rights,
turn over these suitors to a Virginian chancellor,
with his three thousand causes on the docket.
We are not yet to learn that the State courts are
not the best tribunals for the trial of causes in
which the nation or foreigners are concerned.
The paper money systems of some States, and the
breach of treaties in respect to the collection of
debts in others, taught the framers of our Consti-
tution a conclusive lesson on this subject, and they
have wisely provided for the establishment of
national courts, where these evils may be avoided,
and made it our duty to provide for their efficient
organization.
Again, it is idle to disguise the opinions which
are entertained of State judicatures by persons
who have a right of trial by the Constitution in
your national courts. Sir, they have no confi-
dence in some of those judicatures ; and when
they look at the delays which have always at-
tended justice in many of them ; when they see
themselves liable to be thrown into a court of
chancery, and compelled from the mass of busi-
ness alone to wait eight or ten years for a trial,
their confidence cannot be increased. To these
persons, and to all those who may be charged
with onences against the nation, the Constitution
has secured the existence of national courts, and
it is a gross evasion of the Constitution to leave
the organization of these courts materially defec-
tive. It cannot, upon this occasion, become a
question of any importance whether your courts
are more or less expensive than State courts. The
people have not left this question in our hands;
they have declared by their Constitution that the
courts shall exist ; they have said that confidence
is not, and ought not, to be reposed in State courts
for the decision of national causes, or causes of a
civil nature, between citizens of different States ;
they have left nothing upon this subject for us to
do. or to decide, but what relates to the form of
organizing the national tribunals.
All arguments, therefore, which are calculated
to prove either the merits or defects of State judi-
catures are irrelevant to the present question.
The Constitution having declared that the Judi-
cial power shall be vested in one Supreme Court
and m inferior courts, and that the jurisdiction of
these courts shall extend to a great variety of
causes, it only remains to organize them in such
a form as to render justice speedy and certain.
And this the people have a right to demand at our
hands. The parties in civil actions are entitled to
tribunals where justice will not slumber for the
want of judges to decide. The unfortunate who
are accused of crimes, and the people who are in-
terested in public prosecutions, have an equal
right to require that the innocent, when accused,
shall be speedily tried and acquitted, and that the
771
HISTORY OF CONGRESS.
772
H. OP R.
JuMciary System.
February, 1802.
guilty shall be as speedily condemned. The argu-
ments, then, which relate to the purity of State
justice, ought to be laid entirely aside, and gentle-
men on both sides of the House ought to admit
that the Legislature must provide for such an or-
ganization of the courts as will secure the speedy
and certain administration of justice; and the
question will again return, was the organization
of the circuit courts, and which is to be revired
by the present bill, adequate to these objects?
After all that has been said, after the experi-
ence often years, I might safely appeal to gentle-
men to decide whether that system was calculated
to accomplish these objects? Sir, there is not a
gentleman on this floor who can lay his hand on
Eis heart and pronounce so preposterous an opin-
ion. Indeed, some eentlemen have admitted, and
particularly^ a gentleman from Vermont, (Mr.
Smith,) wno was up yesterday, that the old sys-
tem was obviously defective, and ought to be
changed, but that gentleman had not the goodness
to inform us what changes be would propose to
remedy these obvious defects. If gentlemen are
really desirous of improving the svstem, why do
they pursue the path of destruction i They admit
the defects of the old system; they must admit
the advantages of the new one, and yet they
hasten forward to destroy that which is good, and
to revive that which is bad, without proposing a
single improvement to render it tolerable. Sir,
this does not look like a disposition to improve
our judicial arrangements, it looks more like a
determination to prosttate our national courts in
the dust, and to elevate the judicatures of States
on their ruins.
It has been said in the course of this discussion,
that the old arrangement might be improved by
adding to the judges of the Supreme Court. This
Proposition has been repelled whenever it has
een ur^ed. It may not, however, be improper
at this time to observe, that such an arrangement
would be exposed to most of the absurdities and
inconveniences which attended the old arrange-
ment itself. The unnatural association of su-
preme and inferior judges on the same bench
would continue the same. The absurdity of a
judge sitting in an inferior court and deciding
causes on one day, and reversing his own judg-
ments the day followinsr. in a supreme court, is
not removed. The shifting of judges from one
circuit to another at every term, and the conse-
quent want of identity in the circuit judges, re-
mains as the old system has left it. The certainty
of courts may be somewhat increased, but the
geographical extent of the couniry is not dimin-
ished, nor can the circuit duty be lessened, pro-
vided you send two justices of the Supreme
Court into each circuit. And, after all, what will
you gain by such an organization ? As to econ-
ODiy, which is so much the order of the day at
this time, you will not promote it in any essential
point ; the salaries of your new j udges will amount
nearly to as much money as the salaries of your
present circuit judges, and the expense of holding
courts will be precisely the same. That uniform-
ity of decision, which is so necessary throughout
the United States, will not be materially pro-
moted by this arrangement ; because the provi-
sion already made for that object, by writs of error
and appeals to the Supreme Court, will preserrc
that uniformity in every point, which is not a
mere matter of^form ; and, in respect to the forois
of business, it is of little importance whether tbe
forms of one or the other part of the country »
preserved, provided the principles of decision are
the same. There is, however, one object which
will be gained by the proposed arraDgement. Ym
will gain a great accession of numbers to the So-
preme Court, and you will make that tribunal a
which the justice of the country is to reside^ lo
resemble a popular assemblyj and liable to those
party agitations which are so uuiformly foaod in
every large assemblage of men.
Some gentlemen, however, have said, that with-
out increasing the number of judges m the Su-
preme Court you may render the sessioas c^ the
circuit court more certain, and identify the jaige
upon each circuit, by dividing the United States
into as many circuits as you have judges of the
Supreme Court, and attaching one of toe jod^
of the Supreme Court permanently to each cir-
cuit. Sir, of all possible expedieuts, this, in bt
opinion, is the worst, for, without removing tk$
most formidable objections to the old system, i:
absolutely renders the decision of causes i^lpn^
ticable. If the judge of the Supreme Court aii
his associate, the district judge, snail difier in opia-
ion upon any cause which comes before thes.
there can be no decision; and justice beeo&e
more uncertain (if possible) than in the court cf
a Virginia chancellor.
On the whole, said Mr. G., the geDtienaen wk>
advocate the present bill have proposed no snh-
stitute for the system which it is calculated id
abolish, and whilst they admit the necessitv c:
courts, and the defects oi the old systeoi, they can-
not in this hasty manner prostrate au useful iasd-
tution, erected m obedience to the ConstitDiioa.
on any principle of decency or patriotism. It is
certainly true that no exertions have been spared
by the Executive power to prove the inutility c^
the present circuit courts, and the novel expedka:
has been gone into of sending into the Jodicia!
department for a report of all the causes whici
have been returned to the national courts. a«^
from these reports, the President has sent to this
House the document number eight. Sir, nass
of the errors which that document eontains baTv
been already exposed, and I have not troutied
myself to investigate them further, because I hare
considered the document itself of do importance.
I will however observe, that if my information i>
correct, in relation to returns from the circuit coor
of Connecticut, and I presume it must be, because
it is derived from the clerk of that court, the re-
turn on vour table is not the return which vrai
sent to trie Executive from that circuit. That
return included the names of the parties in eaeh
action now depending, and if it had been sent »
us unmutilated, it would have appeared whether
the aggregate of causes had been truly extracted
and it would likewise have appeared who w^r«
773
HISTORY OF CONGRESS.
774
February, 18Q3.
Judiciary System.
H. OP R.
the defendants in that court, from what class of
citizens the President had made the late Executive
appointments in that State, and who the persons
were, who are now probably afraid of federal jus-
tice. But, sir, this document, imperfect and erro-
neous as it is. still proves (if, indeed, it proves any
thing) the necessity of these courts ; it proves that
much business has been transacted in the national
courts, and that much remains to be done. But if
the business was much less than it really is, could
that consideration afford any conclusive argument
against the existence of the courts ? This^ I be-
lieve, is the first time that the utility of courts has
been tested by the number of causes depending
in them. In a country so commercial as this is,
and embarked in so many enterprising pursuits,
in which foreigners are concerned as well as our
own citizens, it is impossible to prevent the exist-
ence of disputes ; and if a small number of suits
only have been carried into the courts for deci-
sion, it proves either that the courts were so badly
organized that justice could not be obtained in
them, or that justice has been so well adminis-
tered, that men have been induced to do justice
to each other without any appeal to the courts.
But this inquiring into the number of causes
depending or tried in the courts, tends more to
embarrass the question than to guide the judg-
ment in its decision. It is not important to be
informed how much business has been or may be
done in the courts ; it is sufficient to know that
the existence of national courts is not only neces-
sary, but expressly required by the Constitution,
tnd that they must be so organized as to render
justice speedy and certain to every man who has
the right to apply for it; and whilst it is both
provided and admitted that the old arrangement
30uld not secure this object, and that the new one
bas greatly promoted it, it must necessarily result
that a determination to destroy the one and re-
store the other, can only arise from a spirit hostile
lo the iudicial power of the Union.
I will; however, detain the Committee no longer
upon this part of the subject, but call their atten-
tion to the great question which bas grown out
}f the present question; I mean the Constitu-
ional right of the Legislature to destroy the
judges by repealing the law which regulated the
node of their appointment. And here I ask the
iberty of observing, that I feel no terror in ap-
p»roacning this interesting question. Its import-
ince can only animate us in the inquiry, and
stimulate our exertions in the defence or truth
ind the Constitution. Nor am I intimidated by
my arguments which have been urged fa support
}f this novel claim of the Legislature, because
those ar|fument8. in my judgment, have been as
>ften refuted as they have been ur^ed.
With the gentleman from Virginia (Mr. Giles.)
[ believe that the power of the Legislature must
)e ascertained by the words of the Constitution
tself. With that gentleman, I think that this in-
(trument is expressed in clear and unequivocal
anguage. And he cannot admire with more ar-
lor than I do the wisdom of the sages who formed
t, or the provisions which it contains. Indeed,
sir, I admire not only the provisions of the in-
strument, but the order and arrangement in which
it is expressed. And I fully believe, if gentle-
men will attend to the order as well as the pro-
visions of it, they will find themselves less em-
barrassed in the expositions which they must
pronounce.
Sir, the framers of the Constitution have kept
every object which it contemplates perfectly dis-
tinct ; they have blended no two subjects together ;
each point is settled by itself, and never embar-
rassea by involving the definition of other points
or other powers under the same head. This or-
der and symmetry will be apparent, when gentle-
men turn to the Constitution. It will be there
found that the first article relates exclusively to
the Legislative department. The mode of elec-
tion, the term of service, and the power of the
Legislature, are there fully and clearly defined ;
and it will be found that there is not a section in
the article, nor a sentence, which delegates power
to any other department, nor can there be found
in any other article an expression which conveys
an atom of power i(f the Legislature. The second
article, pursuing the same order, treats exclusively
of the second department, and does not include a
word which does not relate to the Executive pow-
er. The third article, with the same precision, is
confined to the Judiciary department. The fourth
relates to the authority of the States, and the duty
and power of the National (Government, both as
it regards States and public property. The fifth
article provides for amending the Constitution.
The sixth defines the duty of Government in re-
lation to debts, and the effect of the Constitution
and laws made under its authority ; and the sev-
enth prescribes the mode of ratification.
To investigate, then, the powers of the Legisla-
ture in relation to the Judicial power, I must beg
the attention of the Committee in the first place
to that part of the first article which relates to
this subject. And here it will be found that there
is not an expression in this article, or in any part
of the Constitution, which delegates to Congress
any power on this subject but what is contained
in two sentences in the eighth section of this ar-
ticle : The first declares that *^ Congress shall have
^ power to constitute tribunals inferior to the Su-
* preme Court ;" the second, " to make all laws
' which shall be necessary for carrying into exe-
' cut ion the foregoing powers, and all other pow-
' ers vested by this Constitution in the Govern-
' ment of the United States, or in any department
* or office thereof." By the first of these provis-
ions Congress are clothed with unlimited power
in the erection of inferior courts, both in respect
to the number and their jurisdiction ; and if this
power had not been limited in other parts of the
Constitution, it is certain that the jurisdiction of
those courts, both in criminal and civil causes,
might have been extended to every ease which
could possibly arise in any State or within the
United States. And, if gentlemen please, under
this general and unlimited delegation of power to
erect courts. Congress might not only create and
abolish courts and judges at will, but might limit
775
HISTORY OF CONGRESS.
776
H. OP R.
Judiciary System.
Februart. 18Q2.
the tenure of office to a term of years, to be held j
at the pleasure of the President or any Executive
officer of the Grovernment. It is under the au-
thority of this part of the Constitution that the
inferior courts nave been established, and it is ap-
parent that the power given to the Les[islature by
these general words is not only broad enough to
cover all the ground demanded, but much more ;
and for myself I shall readily admit that, unless
this power has been limited by the subsequent
parts of the Constitution, Congress may at this
time do what they please with courts and judges.
Under the second provision which I have cited.
Congress were authorized to pass the law organ-
izing the Supreme Court and establishing the sal-
aries of the judges of all the courts, and to pass
all laws which were necessary to give complete
efficacy to the Judicial power.
I will not detain the Committee by examining
the particular provisions of the second article, be-
cause that relates exclusively to the Executive
power, and is not materially connected with this
subject, but will pass to the consideration of the
third article, and to which I now beg the particu-
lar attention of the Committee.
The third article of the Constitution does not
delegate any power to the Legislature; its object
is to make a disposition of the Judicial power, to
limit and to define it ; these are the great objects,
and the article has provided for them in the fol-
lowing manner: By designating the courts in
which the Judicial power shall vest ; by securing
to the judges a tenure of office commensurate with
good behaviour, and a compensation for services
which cannot be diminished ; by defining the ju-
risdiction which the courts shall exercise; the
mode in which trials shall proceed, and the facts
which shall constitute certain crimes.
The courts in which the Judicial power shall
vest are designated by the following words : '^ The
* Judicial power of the United States shall be
' vested ia one Supreme Court, and in such infe-
* rior courts as the Congress may from time to
^ time ordain and establish." It is evident, both
from the subject-matter of this article and the
expression which I have repeated, that the fra-
mers of the Constitution only intended in this
place to dispose of the Judicial power ; and to
authorize the erection of courts by Congress.
The words ^^ in such inferior courts as the Con-
gress may from time to time ordain and establish,"
were never intended to convey a power to Con-
etess to establish such courts, because that power
had already been given in the first article of the
Constitution, to which I have before directed the
attention of the Committee, and no surplusage
can be found in the instrument, and because the
object of the expression being to vest the Judicial
power in certain courts, the subject-matter does
not admit of any such construction. The ex-
f»ression then plainly intends nothing more nor
ess than this : the Judicial power shall vest in
one Supreme Court, and in such inferior courts as
Congress under authority of the first article of
the Constitution shall establish. It is further to
be remarked, that the expression presupposes the
existence of a Supreme, and of inferior coarts.
and the article contains no imperative langua§«
commanding the organization either of the oae
or the other. The provisions of the article like*
wise require as much the existence of ioferior as
a Supreme Court, because the words which de-
fine the jurisdiction ot the Supreme Court, gir-
ing that court an appellate jurisdiction in certiis
cases, cannot be satisfied without the existence of
inferior courts, from whose decisions the appeals
may be taken ; and the expression itself, decUrifi|
that the Judicial power shall vest in a Supreme
and inferior courts, necessarily divides to tfaeuh
ferior courts a portion of that power, and renders
the existence of such courts necessary for the re-
ception of the power thus delegated.
The inference which I draw from these eoasfd-
erations is, that the Supreme and inferior courts
are creatures of the Constitution, and not of the
law ; their existence having been rendered neces-
sary for the reception of the Judicial power, by
clear and unequivocal language ; that the judges
when appointed, are of course equally creatore
of the Constitution, and hold their offices under
that instrument in as full a manner as the Prrs-
dent himself.
It is true that neither the inferior or the Sajveaf
Court could have been organized, and the judges
appointed, without a previous law regulating ibe
mode of performing the operation ; and it is eqsal-
ly true, that neither the Representatives on tks
floor nor the President himself, can atthisiicK
be appointed without the aid of a law apportioa-
ing the representation in one case, and direeua^
the meeting of Electors in the other. Indenl
sir, at the commencement of the Government it
was impossible, and still remains so, to obtain tk
appointment either of President, Senators, or Rf^
resentatives, without the aid of State laws ; bet
the man must be wild indeed, who imagines tbat
these officers are not the creatures of thi^e Coasti-
tution because their mode of appointmeat has
been regulated by law, and in my judgment the
man must be equally deranged who imagines thai
the courts and the judges are not the creamres cf
the Constitution because the mode of their orgaa-
ization and appointment has been regulated intk*
same manner. The truth is, that the Consdta-
tion has required with great precision the exig-
ence of a President, of Senators, of RefnTseaii-
tives, and of judges, and in every case left tkf
mode, and in the cases of Representa lives aei
of judges, the number to be regulated hj lav
And after your law has passed and the appoii:-
ments have been made, all these ofllcers hold tbe^*
offices under the Constitution, and you may as
well remove the President, the Senators, or th?
Representatives, by repealing the law which di-
rected the mode of their elections, as to destr^
the judges by repealing the law which regela-
ted their number, the mode of their appcȣ>
ment, or their jurisdiction. Sir, the principle cat
never be admitted ; but the reverse is true, tbjt
all these officers, having been once appoiaeed
must remain in office during the term, and under
the conditions which the Constitution has pre-
777
HISTORY OF CONGRESS.
778
February, 1802.
Judiciary System.
H. or R,
scribed. This then brings me to the second ob-
ject of the third article, and to inquire by what
tenure the judges are to hold their offices, or, in
other words, how long is the judge to remain in
office, having been once in under the Constitution ?
The words of the Constitution are, the '^judges
both of the Supreme and the inferior courts shall
hold their offices during good behaviour." To
my mind no language can be more clear and ex-
plicit than this is. ^' The judges shall hold their
offices during good behaviour;" indeed it is diffi-
cult to explain the expression in terms more cer-
tain or explicit than these are. Ask the merest
school-boy who runs through your streets, how
long is a judge to hold his office, who is to hold
it during good behaviour? And he will reply,
without hesitation, that he must hold it as long
as he behaves well ; he must hold it for life, if he
does not misbehave during that term.
It is, however, our misfortune, in this rage for
innovation, to find that language and those terms
which but a few years ago were not only clear and
explicit^ but well understood, tortured from their
obvious meaning ; and we are compelled to follow
gentlemen through their novel expositions, and en-
deavor to restore the terms and expressions of our
ianfi:uage to their former import.
Gentlemen appear, however, to be aware, that
it would at this time be rather too bold to deny
Che ordinary efiect of the ''good behaviour," but
they contend that there is a latent meaning in
those words when applied to the Constitution,
which has lately been discovered, and which, as
I suppose, cannot be easily discerned by those
whose minds have not been illuminated by the
new philosophy. And if I understand the pur-
port of this discovery, as explained to us, it is,
that although the Constitution absolutely requires
" that the judges shall hold their offices during
good behaviour," yet that nothing is intended by
this^ but that the judges shall hold their offices
against the power of removal in the President ;
and one c^entleman from Virginia (Mr. Qiles)
has gravely attempted to support this strange ex-
position, by saying that the term '' hold." used in
this part of the Constitution, warrants the con-
struction that the term " hold" implies tenure,
and tenure implies not only a person holding, but
a person or body under whom held ; that the ex-
pression the judges '' shall hold their offices during
good behaviour," necessarily and only implies,that
they shall hold against the person or authority
appointing, so long as they behave well ; and as
the second article of the Constitution has desig-
nated the President to appoint judges, with the
advice of the Senate, and to commission them,
it follows that the judgas do hold their offices un-
der the President, and are only secured by the
Constitution against his power of removal so long
as they behave well, being still liable to be de-
stroyed by the Legislature in the manner now
proposed.
Much credit is undoubtedly due to the gentle-
man from Virginia for the novelty of his exposi-
tion, but I must be permitted to say that the gen-
tleman has fallen into an error in two essential
points — he has. in the first place, entirely mista-
ken the import of the word hold; and, secondly,
his construction, if the same had been correct,
could not apply to the present question. Sir, the
term hold does not imply, in a legal, political, or
ordinary sense, a person holding^ and a person or
body under whom held ; it implies noihin? more
nor less than absolute possession ; and to hold is to
possess, to occupy, to enjoy ; and the tenure by
which a thing is held, or the condition annexed
to it, must be defined by other words. Whatever
I hold I possess, and whether it is the gift of a
friend, the fruit of my personal exertions, or a
loan for a term of years, it is nevertheless abso-
lutely held, possessed, and enjoved. So in the
present case, the judges are to nold their offices
during good behiAriour. that is to say, they shall
absolutely possess, occupy, and enjoy their offices
50 long as they behave well, against every power
of removal. The eentleman°s exposition then,
having been founded upon the misconstruction of
a single term in the Constitution, has altogether
failed at the threshold, notwithstanding the prom-
ise of that gentleman to illumine our minds by
the clearness of his logic.
But if the definitions of the gentleman had been
correct, they could not have been applied to the
present question. Admit, for the sake of the ar-
gument, that the term hold implies all that the
gentleman contends for, it does not follow that
the President is the person under whom the office
is held ; on the contrary, it is impossible for the
gentleman to establish his assertion, without in-
vesting the President of the United States with
all the prerogatives of the British monarch. Sir,
it is true, that the King of England is the foun-
tain from whence all tne honors of that govern-
ment flow, and of whom all offices are supposed
to be held ; but I thank God, notwithstanding the
opinion of the gentleman from Virginia, that is
not the case in this country ; the President is not
the fountain of honors with us; the offices of
government are not held under the President, but
of the people, and the President himself is as much
the agent of the people as any subordinate agent
in the nation, and his acts, when performed with-
in the pale of the Constitution, are the acts of the
people, executed by their agent. Admitting, then,
that the judges hold their offices under a superior
power, and it is certainly true that they do hold
under the Constitution, and of the people, although
the term h(dd does not imply it, yet a consequence
directly the reverse of that contended for by the
gentleman from Virginia, will follow ; for, accord-
ing to that gentleman, the expression, that the
judges shall hold their offices during good behav-
iour, being a limitation of the power of removal,
in a body under whom the office is held^ and these
offices being held under the Constitution and of
the people, it necessarily results, that the people
themselves cannot, either in person or by their
agents, remove the judges, so long as they be-
have well, without a change of the Constitution.
Again, the gentleman from Virginia might as
well contend that the judges hold their offices un-
der the Senate or the Legislature itself, as under
779
HISTORY OF CONGRESS.
780
H. OP R.
Judiciary Syftem,
February, 1802.
the President. The Legislature pass the law
which regulates the mode of appointment; the
Senate concur in the nominations of the President,
and in this form all have an agency in the ap-
pointment of judges, and the iudg'es hold their
offices under the Legislature, tne President and
the Senate, and, consequently^, the restriction upon
the power of removal applies as well to the Le-
gislature as to the President.
There is another strange position which has
been advocated upon this occasion, and which de-
serves some attention, because it has been often
repeated. It is that, although you cannot remove
the judge from the office, you may remove the
office from the judge. To this extraordinary as-
sertion I answer, that the words of the Constitu-
tion admit of no such construction, The expres-
sion being, that the judge shall hold his office
during good behaviour, necessarily inapiies and se-
cures a union of the office and the officer, so long
as the officer shall behave well, and a removal of
the office from the judge destroys as effectually
this union as the removal of the judge from the
office could do. Gentlemen admit that the juil^e
cannot be removed from his office, because the
Constitution has united the officer and the office
together, and declares that the union shall remain
inviolate so long as the judge behaves well ; and
yet, strange to tell, you may destroy this union
at a stroke, by destroying the office itself! I re-
quest gentlemen to review this assertion, and to
inform the Committee what possible difference
there can be, in effect, between removing the man
from the office and the office from the man. If
constructions of this kind can be admitted, there
is not a crime which was ever perpetrated by
man, which cannot be justified. Sir, upon this
principle, although you may not kill, by thrusting
a dagger into the breast of your neighbor, yet you
may compel your neighbor to kill himself by
forcing him upon the dagger; you shall not mur-
der, by destroying the life of a man, but you may
confine your enemy in prison, and leave him
without food, to starve and to die. These may
be good distinctions in the new sjrstem of philos-
ophy, but they can never be admitted in the old
school. I will not, however, consume the time of
the Committee by any further remarks on the ex-
traordinary distinction which has been taken be-
tween the power of removing a judge and that of
removing an office. If such distinctions can gain
credit in this Committee, it is idle to attempt to
lepel them.
Although it is not in my power to discern any
difficulty which can arise in the construction of
the Constitution upon this subject, yet, as I am
bound to imagine that some doubt does exist, be-
cause gentlemen declare so, I will now take the
liberty of referring gentlemen to a source of in-
formation, from whence they may ascertain the
precise effect of those words in the Constitution
which relate to the tenure of the office of the judge.
I mean the construction which was put upon the
Constitution by those who framed it, and by the
contemporary writers of the day, who treated of
this subject whilst the Constitution remained be-
fore the State conventions for their adoption.
The meaning of the words must, in the nature
of things, be at at first arbitrary, but it would be
madness to admit that the power of chaof tog tbeii
meaning remains equally so, after the^ bavebeei
introduced, with a precise meaning, into a writ-
ten instrument.
Fortunately, for our present purpose, the tenare
by which the judges of our national courts vere
to hold their offices, was an object of too maeh
importance to escape the critical examiuatioo of
the friends and enemies of the Coustitation, and
it is a fact no lesi important than true, that the
construction which we contend for, was at thai
time given by the writers of all parties and of all
descriptions, without an exception to the cootra-
ry. Sir, the people of this country have been
long attached to an independent Judiciary: tiiey
draw their attachment not only from the thiog it-
self, but from the principle of the British Gov-
ernment, from whence we have drawn so many
of our political opinions, and from the evils actu-
ally experienced by many States under their co-
lonial governments for the want of an independ-
ent Judiciary. These circumstances will account
for the critical attention which was paid to tb»
part of the Constitution in its formation aei
adoption.
The extent and meaning of the terms durw
good behaviour, have not only been asceruined
by contemporary writers, but antecedent to oer
Constitution. The statute of England, 'which has
been already alluded to, is one of these authorities.
and proves directly the converse of that which
has been supposed. That statute declares ibat
the judges of England shall hold their offices dar-
ing good behaviour, providing, however, thatthcj
may be removed by the Kin^ upon the joint ap-
plication of the two Houses ol Parliament. Now.
sir, no gentleman can be so ignorant as not to
know, that the exception of this proviso ia this
statute proves the rule ; it proves that the aat^or-
ity given to judges to hold their offices during
good behaviour would have completely placed
them beyond the reach of King, Lords, and Coa^
mons, so long as they behaved well, and so loof
as the statute continued, if the proviso had not
limited the effect of the general words.
In respect to the contemporary writer^, I wIU
first mention the author of the Notes on Virginia,
an authority which I presume gentlemen on t^
other side of the House will respect. The w^ritai
of those Notes has published a constitution drawn
up by himself for the State of Virginia. This
form of a constitution, although never adopted by
that State, yet serves to prove what w^as, in tke
opinion of Mr. Jefferson, the extent and meaning
of the words, *' during good behaviour.^' In thai
constitution. Mr. Jefferson provides that the judges
of the higher grades of courts shall hold their of-
fices during good behaviour, but in the inferior
courts they shall hold their offices during good be-
haviour and the existence of the courte. I ask
gentlemen why this mode of expression was in-
troduced in relation to the inferior courts? Why,
sir. but for the reason which gentlemen most
781
HISTORY OF CONGRESS.
782
February, 1802.
Judiciary Syitem,
H. OF R.
be blind if they do not see; because the tenure of
office during sood behaviour was so broad and ex-
tensive, that tne judges once in under that tenure
i^ould hold their c^ces for life if they behaved
well, beyond the power of the Executive or Legis-
lature to remove or destroy them ; and in order to
enable the Legislature to remove the judge, or, if
gentlemen please, to remove the office, and limit
the general words, it became necessary to provide
that the existence of the judge should only be com-
mensurate with the court, thereby giving in effect
a power to the Legislature to destroy the judge
by abolishing the court in which he was to act.
The periodical papers of the day under the sig-
nature of Publiui. which it is now well known
were written by some of the ablest men of this or
any other country, and by those who were mem-
bers of the General Convention, and were pub-
lished for the purpose of explaining and recom-
mending the Constitution to the people of the Uni-
ted States before its adoption, contain the same
exposition of the tenure of the office of judge,
and place the judge equally beyond the power of
the Executive and the Legislature.
The decisions and legal opinions of the State
judges of Virginia, upon those parts of their con-
stitution which relate to this subject, go to the
same point. The same expressions in the State
constitutions themselves, and the application of
that language to the question, in those States
where the Legislature appoint the judges, prove
that the limitation of the power of removal applies
as well to the Legislature as to any other depart-
ment.
The debates in all the State Conventions for
adopting the Constitution, and particularly in the
Convention of Virginia, in which this subject was
fully explained, both by the friends and the ene-
mies of the Constitution, can leave no doubt in
regard to the construction at that time given to the
words which define the tenure of the office of
judge.
Indeed, sir, I challenge the gentlemen who are
opposed to the construction now contended for, to
produce a sentence from any contemporary writer
of reputation, which is opposed to the correctness
of our construction. Nay, sir, I go further, I chal-
lenge the gentlemen to produce a paragraph from
a newspaper of that day, which impugns the ex-
position now supported. And permit me to ob-
serve this subject was as interesting at that time
as it is now, and was as well understood.
There is moreover a further authority to this
point, which ought to be considered as conclusive ;
It is the authority of the Convention itself. Upon
this great question of rendering the judges inde-
pendent of the other departments, it was thought
by some, that they ought not to be made com-
pletely so, and a proposition was brought forward
m the Convention to authorize the removal of the
judges by the President, upon the joint application
of the two Houses of Congress, and this propo-
sition was deliberately rejected. Sir, it is impossi-
ble a proceeding should more clearly expound the
intention of the Convention, than this nas done ;
an intention which cannot be mistaken, of placing
the judges beyond the direct or indirect power of
the Legislature.
Sir, It is perfectly apparent that the meaning of
the expressions of the Constitution which relate
to the subject, were fixed and well understood,
both by the Convention and those who adoptea
the Constitution ; and I ask gentlemen before they
press forward to a decision, to examine whether
It is proper? Whether it is competent for us at
this ame to set at naught the constructions which
were then ^iven? Sir, where are we to stop?
What security have we, that every feature of the
Constitution will not be defaced by some new
definition of words and expressions ? Our fathers
and our brothers who formed and who adopted
this Constitution, thought they understood its pro-
visions and its effect ; but alas ! they were igno-
rant and blind, and knew not the import olthe
instrument which they subscribed.
Sir, if Congress can set aside these solemn and
settled constructions, there is not a provision in
the Constitution too sacred to escape the rapacious
hand of the Legislature. A majority may here*
after say, that two really means ten, and the mem-
bers of this House shall hold their seats for ten in-
stead of two years ; or that four means twenty,
and that the President shall continue in office for
that period of time.
An independent Judiciary is the* greatest object
which can be obtained by any Government ; on
this depends the property, the lives, and the liber-
ties of the people. It was the fairest feature which
the Constitution presented for our acceptance;
strip it of this ; let it be the settled construction of
the Constitution, by a final decision of these courts
who must pronounce on your law, and I will unite
with my friend from North Carolina in declaring,
that I will not heave a sigh, or drop a tear for its
loss forever.
' Sir, if your Constitution is to be blown about
by every wind; if it is to be curtailed or enlarged,
as the caprice or the ambition of every new man
shall desire, there is no security to be derived from
it. Your experience will only confirm what many
sagacious men have predicted, and all wise men
have feared, that a Constitution upon paper can
never endure; that the ingenuity of man will be
continually exerted to pervert its meaning; to
make it a nose of wax, to turn it in everv direction,
as the convenience of the moment or tne projects
of a faction shall require. Sir, let us not bv our
conduct verify these predictions; let us not leave
behind this melancholy lesson to the world ; if
we love the Constitution, if we honestly wish to
preserve it, we must admit of no new sophistica-
ted expositions ; we must not only support it, but
we must support it in the constructions given to
it at its adoption. Sir, if you transgress these
bounds, you are afloat upon an ocean which has
no limits ; innovate but in one essential point, the
constructions then given, and a few short years
will prove that the rapacious hand of power will
not leave a vestiee of the mighty fabric.
The strong inducements wnicn presented them-
selves to the Convention to render the Judicial
power independent of the Legislature, furnish a
783
HISTORY OP CONGRESS.
784
H. OP R.
Judiciary System,
Febbuary, 180^.
further argument in favor of our construction ; for
although I admit that this argument cannot be
conclusive, because it is not so much the inquiry
what the Constitution ous^ht to be, as what it
really is, yet if any doubt m fact hangs over the
language, it is fair to ascertain the meaning by
recurring to what must have been the wish and
intention of those who formed the instrument.
The power given to the courts to pronounce on
the constitutionality of laws would be entirely de-
feated, in those times when the exercise of that
power becomes most necessary, if the judges are
not placed beyond the power of the Legislature.
The idea of giving this power to the courts, and
at the same time of leaving the courts at the mercy
of that department over which the power is to be
exercised, is rather too absurd for gentlemen, even
in these days of extravagance ; and gentlemen,
aware of this, have had the confidence to deny
that this power resides in the courts. Sir, upon this
point, it is not necessary to say, that these declar-
ations are opposed to all former opinions and de-
cisions. It IS well known to every member of this
Committee, that the right of \he courts to decide
on the constitutionality of your laws, has been
recognised in your laws themselves; has been ex-
ercised by the courts; your laws have been pro-
nounced unconstitutional and void, and that de-
cision has not only been acquiesced in by the
Legislature, but the act itself has been removed
from your code of statutes. Nor is this principle
peculiar to your national Government; it exists^
and is exercised under every State Government,
where the powers of the Legislature have been
limited by a written Constitution. The princi-
ple not only exists, and results from the nature of
this Government, but is provided for by the terras
of the Constitution itself. The words declare that
the Constitution shall be the supreme law, and
the judges are not only bound to respect it as such,
but have sworn to support it, and they would be
guilty of perjury if they should knowingly decide
for the execution of an act which the Constitu-
tion did not warrant. Nor can any embarrass-
ment result from the execution of this principle;
the iudges must pronounce upon your laws gen-
erally; they find two statutes in your law book
which are repugnant to each other; they must de-
cide which of the statutes shall bind : they find
the law of the Constitution and the law of the
Legislature clashing with each other; they know
the first is paramount, and limits as well the power
of the Legislature as the power of the court, and
they must decide either tnat the law of the Con-
stitution or the law of tlfe Legislature is void. In
such a case there is nothing left to discretion, the
Constitution is peremptory and commands the
obedience of every department.
If this power of checking the unconstitutional
acts of the Legislature is necessary, where can it
reside with so much propriety as in your courts?
This department, from its nature, must be filled
with men of learning, wisdom, and moderation.
It possesses none of the preroffatives which can be
dangerous to public liberty. It commands neither
the wealth nor the force of the nation ; its province
is to pronounce upon the law; to declare what is
right and what is wrong. And that this power
ought to reside somewhere, cannot be doubted br
any man who sincerely wishes to perpetuate oar
form of Government.
Sir, if there is no power to check the usurpaticas
of the Legislature, the inevitable consequence
must be that the Congress of the United States
becomes truly omnipotent. All power most be
concentrated here, before which every^ departmeai
and all State authorities must fall prostrate. Ad-
mit this principle, and nothing can resist the at-
tacks of your national laws upon our State sover-
eignties. Here is an end of your Federal Govera-
ment. A consolidation of the States is the im-
mediate efi'ect. and in a few short years these ^or-
ereignties will not even obtain the name.
But a further effect will result from this prmei-
ple, which, in my opinion, is still worse tbio ihzl
which I have descrioed. All the authority whW^
unlimited power can exercise, mast not colybe
concentrated in the Legislature, but must ultimate-
ly fall into this House, where numbers and pre-
dominating influence must swallow up the oiber
departments, and in this mode there *must be
erected a despotism as terrible as it is powerful
It is the despotism of one hundred and six meL.
clothed with unlimited power, and liable, from m
organization, to all the passions and all that flac-
tuation which can ever agitate a popular assem-
bly. From such a despotism I pra^ God to deli-
ver this country, and entreat gentlemen to stopia
that mad career which leads inevitably to th.?
result.
I have now gone through with the general re-
marks which 1 deemed proper to submit to tie
Committee upon this subject, and might perhaps
with propriety dispense with all further obsem-
tions ; but some of the arguments which hare
been urged in support of this measure, have not
been particularly noticed ; and, upon ao occasijc
so interesting as this is, I shall be excused for call-
ing the attention of the Committee to those wnkk
now occur to my recollection.
Before I enter however into a particular consid-
eration of the arguments of gentlemen, I take the
liberty of sayins: that gentlemen in this House
whatever may have been done in another place,
have placed this question in one respect upon ii:
true ground; they have made no distinction be
tween the authority of the Legislature over ib>
judges of the supreme and the inferior courts. AJ
their arguments have gone to prove that no szci
distinction can exist. Indeed, sir, it is impossible
to perceive the shadow of a difference. The judges
both of the supreme and the inferior courts arc
equally creatures of the Constitution, and the mode
of appointment in both cases has been regulateJ
by law, and if you can destroy the judges of th<
inferior courts by repealing the law which limite>i
their number, and directed the mode of appoini-
ment, you may destroy the judges of the Supresc
Court by repealing the law which limited the
number and organized that court. I wish it then
to be as perfectly understood in every part of thi?
country, as it is in this House, that the principle
785
HISTORY OF CONGRESS.
786
February, 1802.
Judiciary System.
H. OP R.
contended for by the supporters of the bill goes
equally to the destruction of the judges of the su-
preme as of the inferior court^.
One argument, which has been urged in sup-
port of this bill, has been that the law of the last
session, which it contemplates to repeal, was in
itself unconstitutional, and for that reason ought
to be repealed and removed out of the way; and
a gentlemen from Kentucky (Mr. Davis) has re-
ferred us to the second section of that act, as proof
of this assertion, and appears to imdgine that
the authority given to the Supreme Court to is-
sue certain writs cannot be warranted by the Con-
stitution. Sir, without entering into an exami-
nation of the Constitutional authority of the Su-
preme Courts, to issue the writs whicn have been
enumerated, I take the liberty of referring the
gentleman from Kentucky, to the last part of the
section of which he complains ; he will there Snd
that the power of the courts to issue the writs is
confined to cases where it becomes necessary to
issue them foT the exercise of its jurisdiction, and
that they shall be only issued agreeably to the
principles and usages of law; and I believe that
thegentlemaa from Kentucky himself will scarce-
ly assert that an authority to issue writs under
such limitations, is not warranted by the Consti-
tution.
Gentlemen have also referred us to those parts
of the law of last session which abolish the old
circuit courts, and the district courts of Kentucky
and Tennessee, and appear to imagine that, by
abolishing these courts, the judges who were au-
thorized to bold them were destroyed. Sir, those
gentlemen who have called our attention to this
point, appear to have fallen into a mistake, which
has been very common with gentlemen of a cer-
tain description ; they have pursued a theory and
overlooked the fact. What judges were destroyed
by abolishing the old circuit courts, and the dis-
trict courts of Kentucky and Tennessee ? I in-
quire for the fact. Sir, gentlemen' will find that
DO judge was destroyed by the putting down of
these courts. By whom were the old circuits
held? If gentlemen do not know. I will inform
tbem, that those courts were helJ by a judge of
the Supreme Court, and by a district judge, and
gentlemen cannot be so ignorant as not to know
that the judges of the Supreme Court and the
district judge remain in office, notwithstanding
their services in the circuit court have been dis-
pensed with. Besides, those judges were never
appointed or commissioned to be judges of a cir-
cuit court; they hold but one commission, and
that commission in the first case, is as judge of
the Supreme Court, and in the second, as district
judges; and the old law, in assigning to these
judges their duties, required that they should at
stated times associate together, and hold a court,
which was denominated a circuit court, and no
man ever doubted the power of the Legislature
to enlarge or diminish the jurisdiction of a jud^e.
so far as it could be done without invading his in-
dependence. The fact, then, in respect to the old
circuit courts, is opposed to the theory. No judge
has been destroyed by the act of the last session,
and in respect to the district judges of Kentucky
and Tennessee, the fact is precisely the same, for
although the courts which these judges were au-
thorized to hold under the old law, were dispensed
with by the new law, yet the judges remain as
ihey always were, judges of the United States,
under the name of district judges, and the juris-
diction which they formerly exercised in most re-
spects is to be performed by associating with the
circuit judge of the sixth circuit, and holding
courts to be denominated circuit courts for that
purpose.
The difficulty into which gentlemen have fallen,
appears to arise from confounding the terms court
and judge together; they appear to suppose that
these terms are synonymous, whereas no two
terms can be more distinct in their significations.
A court is not a judge, nor is a judge a court. A
judge is a public officer clothed with judicial pow-
ers. A court is a place where justice is adminis-
tered, or an assemblage of judicial officers, or^n-
ized for the exercise of judicial powers. The
term court has a variety of significations, but
never can be construed to mean a judge; a judge
may be authorized to hold a particular court, but
it would be absurd to say, that because his author-
ity to hold that court was taken away, that the
judge himself no longer existed. Sir, if gentle-
men did not perplex themselves with unfounded
theories, there would be no difficulty in this part
of the subject. It is admitted by ail parties that
the jurisdiction of judges may be varied as often
and to any extent which the Legislatures deem
expedient, provided, in doing this, you preserve
inviolable the independence of the judge. The
Legislatures may dispense with the attendance of
judges in old courts, and require their attendance
m new courts, at will. This, and this alone, has
been done in the case under consideration, and the
existence of no judge has been affected. It may
be further remarked, that our judges are in a strict
sense judges of the United States, and the names
which may be given to them, whether taken from
the courts in which they are to act, or the coun-
try in which they reside, has no connexion with
their judicial powers; and being judges, by what-
ever name they are called, their jurisdiction may
be varied; the places for holding the courts may
be changed and their associates varied, as the ne-
cessities of the country shall, in the opinion of
the Legislature, require; keeping, however, al-
ways in view the substantial independence of the
judge. It was on these principles that the author-
ities of the district judges of Kentucky and Ten-
nessee were extended. Those judges were origi-
nally confined to their respective districts, but the
law of the last session required their attendance
in the adjoining districts, where they were to as-
sociate with the circuit judge, and exercise the
jurisdiction which had been given bylaw; and
to compensate them for those additional services,
the same law provided an increase of salary.
A further argument has been urged in favor of
this claim to destroy our judges, which is founded
on the following general assertion, that the power
10 create necessarily includes a right to destroy*
787
HISTORY OF CONGRESS.
788
H. OP R.
Judiciary System.
FEBRnABT, 1802.
In answer to this assertion, I take the liberty of
saying, that it is neither true in fact, nor can it be
applicable, if true, to the present question. A
power to create does not include a right to de-
stroy. This may be proved bv stating a great
variety of cases, but I will confine myself to the
Constitution, and select one or two provisions,
about which there can be no dispute. The Legis-
lature have power to fix the compensation of the
President, but they cannot vary it during the term
of the incumbent. The Lef^islature have power
to fix the salaries of the judges, but they cannot
diminish those salaries whilst the judges remain
in office. The truth, then, is, that the right to
destroy does not depend on the power of creating.
In many cases the rij^ht to destroy must depend
on the immutable prmciplesof morality. In civil
transactions it will often depend upon the stipu-
lations of a contract, and in the business of legis-
lation it will depend entirely on the nature and
limitations of your (Government. So that the in-
quiry will still return, does the nature and limi-
tation of our Government give to the Legislature
a right to destroy the judges ?
Nor coutd the assertion apply to the present
question, if it had been true, because the judges
were not created by the Legislature, but by the
Constitution — the mode of appointments, dbc, hav-
ing been only left to the Legislative department.
One further general assertion has been made,
from whence gentlemen have thought proper to
derive arguments in support of their^claims. It
is, '^that ours is a Grovernment of responsibility,
and that the departments are responsible to each
other." This assertion is undouotedly true, but
the logic must be novel indeed, which can force
this principle to bend to the purposes designed.
The theory of our Grovernment certainly embra-
ces the principle of responsibilitjr, but it is pre-
cisely that responsibility which is delineated in
the Constitution. The members of each House
of Congress are responsible to their respective
bodies, and may be expelled whenever two-thirds
of the members of that House to which the in-
dividual belongs shall think proper to exercise the
power of expulsion. The Legislature itself is re-
sponsible to the Judiciary department for the con-
stitutionality of its acts, and those acts, as has
been already shown, may be declared void,if thpy
are not warranted by the Constitution, and the
members of the Legislature are responsible to the
people upon the returns of every new election.
The President himself is responsiole upon an im-
peachment before the Senate, and upon a convic-
tion by the sentence of two-thirds of that body,
he may be removed from office, and he is again
responsible to the electors at the end of four years.
The judges also are responsible upon impeach-
ment, and may in the same manner be removed
from office, whenever they shall be found guilty
of misdemeanors, by two-thirds of the Senate.
When we speak, then, of the independence of
our judges, we intend only that Constitutional
independence which places them above the power
of any department to remove them, except upon
impeachment.
Under this general scheme of responsibility, one
gentleman has gone so far as to say. that the
judges are responsible to the Legislature under
the power given to appropriate money for the
payment of their salaries, and if we do not like
the judges or think the salaries too high, we may
refuse the necessary appropriations. Sir, I will not
insult the understandings of the Committee by an-
swering this argument ; and I only mention it at
this time to express my astonishment, that a princi-
ple only calculated to *^stop the wheels of Govern-
ment." should at this time be renewed on the floor.
If gentlemen are really determined in this form to
arrogate all power to this House, it will be more
manly to assume it openly and without disguise.
Still, however, pursuing tnis plan of responsibili-
ty, a gentleman from Kentucky has told us that
the judges are responsible to the people upon ev-
ery new election, and whenever it shall appear
by the result of the elections, that the people are
opposed to the political opinions of the judges,
they are, as I suppose, to be tumbled from
their places, and the seats of justice are to be fill-
ed with men whose minds will bend more easily
to the will of the prevailing faction. On what
page of the Constitution the gentleman from Ken-
tucky has found this alarming principle, it is im-
possible for me to say. I can, therefore, only de-
clare that, in my judgment, it is subversive of
every provision in that instrument, and must con-
vert the courts into revolutionary tribunals, and
render them the mere agents of a prevailing
faction to execute vengeance on their political
opponents.
A further argument has been urged to prove
the dependence of judges on the Executive power,
and that the limitation in the Constitution upon
the power of removal, applies only to the Presi-
dent, drawn from a principle which exists in all
monarchical governments ; that principle is, that
the Judicial authority is only an emanation from
the Executive power, and a branch of it. Sir,
gentlemen who have repeated this principle ap^
pear to be insensible that it has no application to
the form of government in this country. In un-
limited monarchies, it is true, the Legislative, the
Executive, and the Judicial powers, are all united
in the same person. The monarch makes the
law, decides upon it, and carries it into execution.
This constitutes the essence of despotism. In
limited monarchies, such as that of England, the
Legislative power is at this time in reality sepa-
rated from tne Executive; and, although the Ju-
dicial power remains still nominally united to the
Executive, and was so in fact before the Revolu-
tion, yet, in effect, the act of Parliament which
renders the judges independent, has separated this
department from the Executive power ; and, in
this country, pursuing the great object of render-
ing the three departments of government inde*
pendent of each other, we have, as well in onr Na-
tional as State constitutions, provid»i that these
departments should not depend upon or be subor-
dinate the one to the other. The theory of our
Government supposes that the department which
enacts the law should neither expound it <x carry
« • »
789
HISTORY OP CONGRESS.
790
February, 1802.
Judiciary System,
H. orR.
it into exeeution ; that the department whose
province it is to expound the law, should not be
entrusted with its execution. By assigning to
each department in this form its distinct duties,
and establishing the independence of each, in the
exercise of its appropriate functions, we have at-
tained, if the principle is preserved, more security
against the power of oppression, than any nation
ever enjoyed. The Legislature may pass uncon-
stitutional laws, depriving the people of riehta
which the Constitution has guarantied ; but these
laws can never be executed so long as an enlight-
ened and independent court remains to expound
them.
The ambition of an unprincipled First Ma-
^istr^te may desire the ruin of individuals who
ire opposed to his ambitious projects; but the
vengeance of Executive xx>wer can never reach
the roan of virtue, so long as he is protected by the
sourts of his country. Gentlemen, then, who at-
tempt to engraft upon our Constitution the theory
3f monarchies, ought to learn that they do not
ipply to our form of government, and that the ex-
pression of the Constitution which was designed
to give independence to the judges, could not
lave been designed to guard the judges against
:he Executive more than the Legislative power.
[ts object was to render the Judicial a distinct
ieparlment and to leave the judges, without the
"ear of removal, to exerci.se their legal and Con-
stitutional powers.
Gentlemen have likewise said, that our theory
iestroys itself; that, whilst we are supporting the
independence of the judges, we admit that they
ire exposed to an impeachment by one branch of
:he Legislature before the other, on which they
nay be found guilty of misdemeanors, and ex-
celled from office; and that the fear of impeach-
nent will operate more strongly upon the passions,
■ender them more submissive to the Legislative
pvill, and more effectually destroy their independ-
ence, than the power of removal claimed under
he present bill. To this consideration, I answer,
hat a judge can only be removed upon impeach-
nent, by the concurring voices of two-thirds of
he members of the Senate ; and if the period ever
should arrive when a majority of the House of
Representatives should become sufficiently cor-
upt to go into the Senate with an impeachment
igainst a virtuous judc^e, and two-thirds of that
>ody should be found base enough to support it,
t ^11 then be of little importance what becomes
)f your courts or your judges. The form of Gov-
ernment which we have established can never
survive the corruption of that day ; and when de-
pravity shall have gained so strong a foothold in
the Legislative department, the whole political
body niust be contaminated ; and, instead of being
the citizens of a free Government, we shall be fit
only to be the slaves of a master. Sir, the Con-
stitution, by requiring that a majority of the House
■yf Representatives and two-thirds of the Senate
shall concur in an impeachment and conviction,
las secured to the jud^e his independence in or-
iinary and in violent times; but it was impossi-
jle to secure him against the convulsions of a rev-
olution, or the more certain effects of total degen-
eracy and corruption.
Again, it is said that the power of the Legisla-
ture to vary the jurisdiction of the judges, and to
create new courts, may be used to destroy their
independence, and whilst we admit the existence
of that power, we may as well admit all that the
bill claims. Sir. I have two answers to give to
th^argument. The argument itself is dvawn from
a supposed abuse of power, which can never be
admitted in any deliberative body, because it goes
to the destruction of all power, for all power may
be abused, and therefore no power ought to exist.
But a consideration perhaps more conclusive is,
that an abuse of power in the case stated can never
take place unless attended with circumstances so
violent as to appal the intrepidity of any Legisla-
ture. And again, the evil will, in some measure,
correct itself. For, if you diminish the jurisdic-
tion of your old judges, and confer their import-
ant powers on new judges, who may be taken
from the prevailing sect, the consequence will or-
dinarily be, that your new judges, having obtained
the object of their ambition, being removed by
their independence beyond the power of their own
party to remove them, will find it for their own
interest to administer justice according to their
best discretion, so that the principle of independ-
ence which we contend for, will, in its operation,
correct that abuse of power, which might other-
wise prove so destructive.
I have now. Mr. Chairman, noticed all the ar-
guments which occur to me, and which have been
urged in support of the present bill, and I hope
shall be pardoned, if, upon this all-important oc-
casion, I again turn back to the eniphatic words
of the Constitution, on which we principally rely.
^' The judgres both of the supreme and inferior
courts shall hold their offices during good beha-
viour." If words so explicit in their meaning, if
an expression so well understood by every capaci-
ty, can be construed away, by the metaphysics of
tne day, with much more ease may we ourselves,
or our successors, remove, by construction, every
barrier which limits the power of the Legislature.
It is declared in the Constitution, that the migra-
tion or importation of such persons as any of the
States now existing shall think proper to admit,
shall not be prohibited by the Congress prior to
the year 1808. If this spirit of construction is
admitted, how easy will it be for gentlemen to say
migration or importation does not mean introduc-
tion ; and that Congress may prevent the intro-
duction, although they could not prohibit the mi-
gration or importation, and in this mode the secu-
rity of the States will be entirely destroyed. Acts
of attainder may not be passed ; but gentlemen
may hereafter say, that an act to confiscate the
property of an individual, and to banish him to a
foreign country, under pain of death, if he return,
is no act of attainder, and within the powers of
Congress. A capitation tax can only b« laid by
an apportionment among the States ; but it may
be said that a tax upon all persons able to carry
arms, is no capitation tax within the meaning of
the Constitution, and may be laid without an ap-
791
HISTORY OF CONGRESS.
792
H. OP R.
Judiciary System,^
Febrdary. ISOS
portioDment. No money shall be drawn from the
Treasury without an appropriation by law; but
your President may hereafter say, that this does
not extend to money in the hands of collectors. In
fine, there is not a prohibitory clause within the
Constitution which may not be evaded, if this
spirit of construction is tolerated.
Sir, do gentlemen see the extent to which they
are going? Do they see in this bill a principle
which goes to prostrate all State authority ; which
goes to demolish every department, except that of
the Legislature, and to concentrate all power
within these walls 7 Gentlemen must pardon me
when I entreat them not to abandon the plain
meaning of terms ; if we sufier ourselves to be
seduced into this wide fi^ld of conjecture and con-
struction, your Constitution will retain no more
certainty than the wind ; its value will become
less than the paper on which it is written.
I should now close the observations which I had
to submit to the Committee upon this interesting
question, had not the gentlemen on the other side
of the House thought proper to involve in this
debate a discussion of several topicsMiot necessa-
rily connected with the subject. These topics
have been urged, undoubtedly, with a view to in-
fluence the decision of this question, and, although
I cannot see their application, yet I am not dis-
posed to set up my discernment as the standard of
infallibility, and shall therefore now pay due re-
spect to tne path which those gentlemen have
marked out.
The gentleman from Virginia, (Mr. Giles,) as
an apology for the extensive range which he has
taken upon this occasion, has informed us that one
act of the last session was but a single link in one
great chain of the political measures, and for the
purpose of understanding this particular measure,
It became necessary to review the whole chain of
political events.
The gentleman begins his remarks, by saying
that two parties have existed in this country from
the commencement of the present Government ;
the one, what the gentleman has been pleased to
denominate a parly of energy, and the other a party
of responsibility ; the first, disposed to go forward
with the afiairs of the Government with energy,
as they deemed right and expedient, and the other
only in submision to the public will. Sir, it can
be no news to the members of this Committee that
two parties exist in this country, nor can gentle-
men be ignorant that two parties did exist in the
nation at the adoption of the Constitution ; the
one consisting of its friends, and the other com-
posed of its enemies ; nor is it necessary for me
to say how the present have grown out of these
original parties. It is sufficient for my present pur-
pose to say that the parties alluded to by the gen-
tleman from Virginia, are chairacterized by prom-
inent features, and cannot easily be mistaken.
Some of these features I will describe, and leave
to the decision of the Committee which party real-
ly deserves best of the community. One great
feature which has characterized those whom the
gentleman has been pleased to denominate the
party of energy, has been their strong attachment
to the present Constitution ; and a deter minatic!:
not only to leave each department to the exerciH
of its proper functions, but to support them Iq it
Their opponents, to say nothing of their attarii-
ment to the Constitution, have on the contrary
been disposed to bring all the powers of the G:>-
ernment into the House of Representatives, and n
that way to strip the other branches of their C;s-
stitutional authorities. This was attempted sofus
years ago in a very interesting question, wbicbre
iatedto the British Treaty. For although the Coa-
stitution had expressly delegated the treaty-mabif
power to the President and Senate, yet the gent^
man from Virginia and his friends were deter-
mined to grasp It for the House of Representatives.
Pursuing the same spirit of hostility to the other
departments, the gentleman and his friends are ai
this time attempting to make an inroad m the Jo-
die ial department, and to bring in effect the pow-
ers of that department into this House.
Again, this party of energy was disposed to es-
tablish and support public credit, in which iheii
opponents did not agree. This party of eofrgr
was likewise determined to defend their coanirr
against the hostile attacks of the enemy, and b
support the interest, the safety, and honor of i&e
nation ; their opponents, on the contrary, were dis-
posed to prostrate everything that w^as dear, to'ie
will of the enemy. One party was disposed ^
build up and support, while the other were, asd
still are, determined to pull down and dtfstr;??.
The spirit with which this determination i« pur-
sued will appear, from the allusions which hvi
been made to the most prominent measures of ik
former Administration.
The public debt has been spoken of, and it has
been charged as a crime that these solemn engife-
ments, which were the price of our independecW.
and for the discharge or which the national hi:^
was pledged^ have been provided for hy the cli
Administration. Sir, are we to understand tha:
this crime is to be ultimately atoned, by wipmi
out the debt with a sponge ? Surely the gentleman
cannot intend this, and yet I can give no other
solution to the remark.
The Indian war has also been alluded to in verr
extraordinary language, as an event 'which ¥%
greedily seized to enlarge the field of fixecntire
patronage. Sir, the gentleman cannot intend t:
insinuate that tbe Indian war was excited by in
Administration ; the causes which produced tla:
war are too publiclv known to be forgotten or ni>
understood. And nas it indeed, at this time, b^
come criminal for the Government to defend tb«
inhabitants of our frontier from the attacks of tk
savages?
The gentleman has likewise told us that the de-
predations upon our commerce by the Bartary
Powers, and by the French cruisers, was made i
pretext for commencing a Naval Establish met*,
and in this way of extending this bugbear of £i-
ecutive patronage. Sir, this remark gives me r^
surprise. I know perfectly well, that there is t
party in this country who are opposed to our coat-
merce and to our navy. I shall long recollect tbf
depredations which were made upon our com merce
r93
HISTORY OP CONGRESS.
794
("ebruary, 1802.
Judiciary System.
H. opR.
)y the French, and the difficulty with which gen-
lemen were persuaded to repel those depredations.
caDDOt forget that before they would consent to
lur 6rst measure of defence, that the cruisers of
.France were capturing your ships within the Del-
Lware bay. It is certainly true that the old Ad-
ainistration was neither the enemy of commerce,
lor of the navy ; and it is as certainly true that
hey were equally disposed to defend your citizens
gainst Algerioe slaverv, and the depredations of
Trance. And to merchants and seamen of this
;ountry, and the community at large, I am willing
o refer the question, whether it was proper to
lurrender our commerce to the enemy, and give
ID our seamen to slaverv, or defend both by an
kdequate Naval Establishment?
Gentlemen have complained of the haste with
vhich the last Judiciary act was passed ; but when
rentlemen indulge themselves in these sugges-
ions, they ought to examine whether the fact of
vhich they complain has really existed. They
)u^ht to recollect that the journals of this House
viTl decide this point, and that by these journals
t will appear that this very law, m its prmciples,
ivas under the consideration of Congress for two
essions; that the subject had for years been con-
em plated by the members of the Legislature, and
hat no act of the Government (unless we except
he act of bankruptcy) was ever passed with more
[eliberation.
There was, however, one circumstance attend-
ng the passage of this law which in the opinion
)f the gentleman from Virginia TMr. Giles) can-
lot be excused : the law received the signature of
he President whilst the House of Representatives
vere engaged in the late Presidential election.
The gentleman has indulged himself, by saying
hat this obnoxious law was approved by the Pres-
dent whilst the House of Representatives were
!nj?aged in the election of a Chief Magistrate, and,
nfluenced by the violence of party, were attempt-
ng to defeat the public will. Sir, what does the
rentleman from Virginia intend by these declara-
ions? Are we to understand that the determina-
ion is now avowed on this floor, which we have
leard so often repeated beyond the walls of this
^ouse, that no man but a Vireinian is hereafter
o become a President of the United States? And
ire we indeed reduced to this, that the members
)f this House, when ezerciiiing the sacred right of
lufTrage. on one of the most important occasions
ivhich can ever arise, are to be charged with at-
empts to defeat the public will, because they
^ould not consent to violate their consciences, in
iroting for a particular candidate merely because
le lived on the other side of the Potomac? Sir,
:his language may |ierhaps accord with the senti-
nents of this meridian, but give me leave to tell
:he gentleman from Virginia, that it will not be
relished by one part of the United States, and give
Die leave further to say that there are States
n this Union, who will never consent, and are
lot doomed to become the humble provinces of
Viri^mia.
Sir, I consider the .question we are now about to
iecide, as more important than any which ever
occupied the attention of the National Legislature.
The Constitution has guarantied to the people of
this country an independent Judiciary, but the mo-
ment the bill on you table becomes a law, that in-
dependence is gone, and your courts become the
passive agents of the Legislature to execute its
commands. And whatever may be said on this
subject, it is impossible to prevent the members of
this Committee and the people of the United States,
from tracing this destructive measure back to the
fountain from whence it has proceeded. Who re-
commended a revision of the act of the last ses-
sion ? Who sent us the document on which gen-
tlemen have predicated so many of their argumen ts ?
Who, sir, but the President of the United States? on
whose head must fall the whole weight of respon-
sibilitv for this invasion of the Constitution.
Before I sit down, permit me once more to ap-
peal to the intelligence, and to the patriotism of
the members of this Committee. Permit me to say
that there is no middle ground between a govern-
ment of laws and a government of men ; that the
former can only be supported by an independent
Judiciary, and if by the passage of this bill you
destrov this only barrier, the people of the coun-
try are left at the mercy of a host of despots, whose
will is law, and whose enmity is death.
Mr. MiLLEDOB said, he hoped the Committee
would spare him a few moments of their time,
that he nad no intention of saying a word on the
important question before them, and meant to
have contented himself by givinjp^ a silent vote ;
but as some remarks had fallen trom the gentle-
man from South Carolina, (Mr. Rutleoqb,) in
the course of his argument delivered yesterday,
renpec ting the removal of a postmaster in the State
he had the honor to represent, that for the present
he would pass any explanation by on that subject
and, as he was drawn on the floor, he conceived
himself bound to make some few observations on
the bill now under consideration, that his constit-
uents might know what guided him in his vote;
that it was useless on any other score ; that the
subject was exhausted ; nor had he the vanity to
suppose that anything that should drop from him
would influence a single member ; that from the
doctrine held by gentlemen who differed from him
on political xH>ints, he was one of those on that
account who solemnly believed that the passage
of that bill, as handed by the Senate, fixed a prin-
ciple as to the Judiciary, on which, in his opinion,
depended the liberty, property, and happiness of
his country. He stated that, though true, it was
imperative on the first Congress to establish a na-
tional Judiciary, it certainly was also true that all
their plans were speculative. He said, let it be
supposed for a moment that, in forming that sys-
tem, they had made sixteen circuits and assigned
duties to sixteen judges ; that instead of two courts
of appeal within the year, they had made four;
that when this theoreticsd system had become
tested by experience, it was found that the inter-
est of ine nation in that department could be as
well and better conducted by having only six cir-
cuits and six judges, and by two courts of appeal
instead of four. Would not Congress have the
795
HISTORY OF CONGRESS.
7?r
H. OF R.
Judiciary System.
Februabt, 1S02
right to modify the law to meet the general wel-
fare in that respect? It is Dot dcQied nor brought
into question but that they have the power of ex-
tending the courts; then surely they have the
same right to abridge. But it is said that the
judges, when once appointed, hold their office
durmg life, from the tenure of their commission
being during good behaviour, and receive for their
services a compensation which shall not be dimin-
ished during their continuance in office; and, in-
dependent of the power that cave them existence,
except by impeachment. He said, he admitted
that it was true, to a certain extent, thev were in-
dependent of the Executive, because nis whim
and caprice could never affect them; they were
independent of the Legislature for they could not
constitutionally pass a law to remove an individ-
ual judge or judges from office; that the Legisla-
tive power was confined to the system of jurispru-
dence by which the general welfare of the nation
was to oe consulted either to extend or abridge ;
that in case of abridging, and courts were abol-
ished, the duties are taken from the judges, there-
fore they cannot receive compensation, for they
have no service to perform ; they are not inde-
pendent of the law, but depending for their exist-
ence as judges on the law: when the law goes
down, thev tumble with it; that on the subject of
the rightful and necessary independence of the
judges, that so much had been said about, that it
nad been lon^ his opinion that our late great and
virtuous President, Washington, had sureljr been
ill-advised when he took from the bench of judges
the Chief Justice, Jay, and sent him not on a Ju-
dicial but a diplomatic errand, when it was after-
wards followed up by the late Administration in
sending a similar nigh character, on a similar er-
rand ; then it was, and not till then, that the inde-
Eendence of the judges became prostrated not by
legislative power, but to the Executive authority
under the influence of its patronage. Mr. M. said
that, on the subject of expediency, he was one of
those who always thought it was the interest of
the nation to lessen by every means in its power
the foreign connexions; that we are at peace with
all the world except the Barbary Power, Tripoli,
whose trade is war — ^and peace in Europe; that
it was fair to presume, for those reasons, that few
cases would come before the national courts, on
what is called the law of nations, and that the
Constitution selves a right to foreigners as well as
citizens of a different State to sue in the Federal
courts: that the animosities and prejudices that
grew out of the war for oar independence would
daily abate; that the right of action in these
courts should by degrees be narrowed, from a per
suasion that the State courts administered justice
as ample and as speedily as the national courts ;
that as to foreigners and citizens of different States
not being able to obtain complete justice in the
State courts, that argument could now have no
possible weight; that, on the contrary, it always
appeared to him that strangers from whatever
quarter they might come, if they brought with
them a good character, always met with a partial
leaning of the citizens in their favor ; he therefore
thought that the old system, with a few amecl-
ments, was commensurate to all the objects d
national jurisprudence. Mr. M. said, that he ka;
discovered that gentlemen, throug^b out the dbce-
sion of this important question, had read coa5i4-
erably from newspapers and other writings, k
hoped he might be indulged in turn ; that he b.
been favored with extracts from two letters. §n:
to an honorable member of the Senate from c-.
less characters than Governor McKean and tkt
celebrated John Dickenson, the Pennsylvaiiia kr-
mer. Governor McKean 's letter says :
"The vote of the Senate of die United 8tat<« ra^
question for repealing the late Judiciary law aixordt
with my sentiments, as it seems to hare been timinnd
and executed rather to serve the interest of a frvmi-
ous partisans than the people at large. That a Lcfv-
latuie have the power at a sabsequeatseaaiai tanpe^
any act passed before, cannot admit of mack dsabt in
a reflecting mind ; the same power that oesMs can
assuredly annihilate, where there ia no CoDMilHUaiL
impediment; an office may be abolished wheait^kifi
be deemed mischievoua or unnecessary, thoogii ^
officer may not otherwise be removable, but afiei ^
conviction of some misdemeanor, and when there u t»
existing office, there cannot be any officer to execste i
both are nonentities."
Mr. Dickenson writes thus :
*^ It seems to me that there should be the eleana
and strongest provisions made against any iagrafisMa
of any elements or powers from principles of coDca
law upon the specified, limited, delegated, defined is-
thorities, confided by the several States to the Unis
how has the understanding of united America beea
insulted by sophistical argumentations drawn tea
this source, and ftom the paragraph of the eighth «»•
tion of the first article of the Constitution to recos^
us to boundless powers in the Federal CrOTemme£t. .1
danger against which the firamers of that Co&stitotks
strove with the utmost anxiety to guard sach ssfi^>
tions,) which would turn judges into legislators, aad tna-
tees into usurpers. I had rather that the w^hole JodiauT
system of the Union should be abotished thas i&sf a
should exist with those dangerous preteaaioBi, ilnat-
ening perdition to our best securities against fetoR op-
pressions ; they will entangle us in endless labtnslbi
of confusion. Is it not very extreM>rdinaxy that^ andff
our Constitution, judges should declare the natios ir
be in a state of war, when the Legislature is afleni la
that momentous point V*
Such. Mr. Chairman, are the seDtinaeats cf
those two venerable patriots, statesmen, and lav-
yers ; our country can claim none hig-Q^* in iM
possession of those qualities. What more, tho.
can be said on the subject ? It forecloses ail m^
ment. The gentleman from South Carolina (Mr.
Rdtledge) nad said that, in looking over a news-
paper that he had before hiqn, it appeared ihn
even a postmaster in Georgia had been tamed
out of office because he was a printer, yet the
person denies his being a printer. Mr. M. obserr-
ed that, so far as respected himself being brwigt:
into question by the publication alluded to, he te!:
no hesitation to declare the part he bad taken ci
that occasion. He said he had mentioned that
the editorial part of the paper, called the Augvgtc
Herald^ was supposed to come from the pea oi
797
HISTORY OP CONGRESS.
798
February, 1802.
Judiciary System.
H. OF R.
Mr. Hobby ; that he was not the mechanical op-
erator ; that the press was generally considered lo
be under his control, and that that paper teemed
'with invectiye against the principal officers of the
present Administration. Mr. M. further observed
that, as the gentleman (Mr. R.) had passed into
the State he had the honor to represent m search
of matter for his argument, he begged he miffht
be permitted, in turn, to view him a little within
bis own limits; he had informed the Committee
that the vote he had given for President, which
was a blank, he had the gratification to think
was not only conformable to his own feelings, but
he believ^ed to those of the people of South Caro-
lina. Mr. M. said, he hoped he did not misquote
the gentleman. That the Committee had been
favored with much newspaper information ; he
also sometimes read newspapers, and in one he had
seen an account of the decided disapprobation of
some of his fellow-citizens in South Carolina for
his blank rote. He would ask that gentleman
whether his country had not on a former occasion
called on him within his State to exercise a simi-
lar duty, and whether he then put in a blank, or
whether he voted for "a man of the people^ a
demagogue ;" a man of plain and simple atare
without a '* Mister before his name — an Oliver
Cromwell 7" If he did, he left to the fentleman's
o-wn reflections the propriety of what tell from his
lips yesterday.
Friday, February 26.
The Speaker laid before the House a letter
from William Henry Harrison, Governor of the
Indiana Territory of the United States, enclosing
certain resolutions of the grand jury of the county
of Knox, in the said Territory, at a term of the
court of general quarter sessions of the peace, held
for the said county, in the present month, assert-
ing the rightful claim of the Territory aforesaid
to the island of Michilimackinac, and its depend-
encies, as an integral part of the said Territory, in
opposition to the claims of the Grovernment of the
Northwestern Territory to the same ; which were
read, and ordered to be referred to Mr. Thompson,
Mr. Dennis, and Mr. Dickson ; that they do ex-
amine the matter thereof, and report the same,
with their opinion thereupon, to the House.
The following Message was received from the
PaEBinENT OF THE Unitbu States :
Cftniltmen of the Senate, and
of the House of Representatives.-
No occasion having arisen, since the last account
rendered by my predecessor, of making use of any part
of the moneys heretofore granted to defray the contin-
ge^ charges of the Government, I now transmit to
Congress an ofScia! statement thereof to the thirty-
first day of December last, when the whole unexpended
balance, amounting to twenty thousand nine hundred
and eleven doUais and eighty cents, was carried to the
credit of the surplus fund, as provided for by law ; and
this account consequently becomes finally closed.
TH. JEFFERSON.
Fbbbvabt 36, 1802.
The said Message was read, and, together with
the official statement referred to therein, ordered
to lie on the table.
Another Message was received from the Presi-
uent of the United States, as follows:
Gentlemen of the Senate^ and
of the House of Representatives:
Some statements have been lately received of the
causes decided or depending in the courts of the Union,
in certain States, supplementary, or corrective, of those
from which was formed the general statement accom-
panying my Message at the opening of the session. I
therefore communicate them to Congress, with a report
of the Secretary of State, noting their effect on the
former statement, and correcting certain errors in it,
which arose partly from inexactitude in some of the
returns, and partly in analyzing, adding, and tran-
scribing them, while hurried in preparing the other
voluminous papers accompanying that Message.
TH. JEFFERSON.
FXBBVABT 26, 1802,
The said Message, and the documents accom-
panying it, were read, and ordered to be referred
to the Committee of the Whole to whom was
committed, on the fourth instant, the bill sent
from the Senate, entitled '' An act to repeal cer-
tain acts respecting the organization of the Courts
of the United States, and for other purposes."
JUDICIARY SYSTEM.
The House then went into Committee on the
bill sent from the Senate, entitled " An act to re-
peal certain acts respecting the organization of
the Courts of the United States, and for other
purposes."
Mr. Nicholson. — I lament, Mr. Chairman, that
I am under the necessity of rising at this late hour,
as I am fearful the patience of the Committee is
well nigh exausted. I am sensible that the un-
common length of the discussion has left me but
a very narrow ground to tread on ; but as the ques-
tion has become highly important, from the Con-
stitutional objections which hare been started, I
will venture to solicit your indulgence while I
offer some remarks-.that appear to my mind ap-
plicable to the subject now under consideration.
The yerv uncommon direction which has been
given to the debate, will, I trust, be a sufficient
apology for my noticing a variety of observations
made by gentlemen on the other side of the House,
which have no connexion with the bill on the ta-
ble. I should have felt a singular pleasure in fol-
lowing the honorable member from Connecticut,
iMr. GriswolU}) but for his concluding remarks,
n the anterior part of his speech, that gentleman
kept his eye steadily fixed either upon the expe-
diency or constitutionality of the question, and
did not indulge himself in those wanderings of the
imagination, which so eminently distinguished
his friends who have preceded him ; but the close
was marked with a shameful virulence, calculated
to excite indignation and not to convince the
understanding.
Sir, when I am told that the party advocatiiLg
this repeal have grown out of the party original-
ly opposed to the Constitution, and are now about
to prostrate it, I feel more than I am willing to ex-
799
HISTORY OP CONGRESS.
H. OF R.
Judiciary System.
February. Wt
press ; but when gentlemen talk abuut parties in
this country, pernnit me to turn their attention to
an earlier period of our political history ; to that
period when our liberties and independence were
at stake, and when every nerve was strong to re-
sist the encroachments of tyrannv. At this time
where were many of that gentleman's political
friends ? Upon examination it will be found,
that many of them basely deserted their country
in her distress, and were openly fighting in the
ranks of her enemies. In the list of my political
friends, none such are to be found, for we do not
require their support. But I can look about me,
upon my right hand and upon my left, and can
see men, even upon this floor, advocating the pres-
ent bill, who bore the burden of the Revolutionary
war, who drew their swords to establish the in-
dependence we now enjoy, and who will not hesi-
tate to draw them again, if those threats are car-
ried into execution which have been recently
thrown out against the Constitution. I know
men too, equally distinguished for their talents
and their virtues, friendly to this repeal, who signed
the Constitution as members of the General Con-
vention, who used every effort to promote its adop-
tion, and who, I have no doubt, are ready to de-
fend it, to the last moment. There are men like-
wise, and gentlemen dare not contradict me, who
refused their signatures to the Constitution as
members of the General Convention, and who op-
posed it in every sta^e of its adoption, but were
afterwards received into favor, and were high
in the confidence of the former Administration.
Which of these two descriptions of persons are
most likely to cherish the Constitution, I cheer-
fully leave to the American people to decide. It
is extremely possible that some of my political
friends were opposed to its adoption, without cer-
tain amendments at that time ur^ed with sreat
force, because they thought the liberties of the
nation not sufficiently secured ; and I wish I could
say that no events have since taken place to jus-
tify the uneasiness which at that time existed. A
recurrence to some of those events by my friend
from Virginia TMr. Giles) has been warmly com-
mented on, ana he has been charged with intro-
ducing subjects which have formerly excited irri-
- tation, for the purpose of catching the popular ear.
1 trust I shall be pardoned for saying that, in my
judgment, a recurrence to those events was in a
great measure rendered necessary, by the unjusti-
fiable remarks with which the debate was open-
ed by a gentleman from North-Carolina, (Mr.
HfiNnERSON.)
Let it be recollected, sir, that a few days past,
when the|;entleman from Delaware (Mr. Bayard)
was beggins for a j^ostponement of the bill for a
week only, ne promised for himself and his friends
that if we would indulge them, they would meet
us with calmness, and would proceed to the
discussion with a spirit of Christian meekness.
After the postponement was consented to, and after
this voluntary promise, I came to the House with
an expectation of hearing the subject discussed
with that coolness and deliberation which are
truly desirable in the investigation of truth ; but
I soon discovered that this expectation was Tii:
and illusory ; that the expected calm had mA
itself to a whirlwind, and the spirit of Chn>;j:
meekness was transformed into a spirit of a^:-:
and crimination.
The gentleman from North Carolina, who opti
ed the debate, forgetful of the promise whidiL
been made for him by his friend from DelawL'i
commenced an unwarrantable attack upon i oa-
jority of the House, by declaring that on ihcffr-
enth of December the same spirit of moniir.
had entered these walls, which had laid wastt;:;
fairest portions of Europe ; that it was novak'
to tear down all the valuable institotioos wkii
had been erected by former Administrations, ak
even to destroy the Constitution itself. Di^^c-
tlemen imagine that such observatioos wm tj
pass unnoticed 7 Did they suppose tbatweTWiiii
sit tamely down under an imputation itocceso
heavy and so groundless? Was it noiiiatanl
that we should go back and look intotbeutaTe
and origin of those measures which h8dbeead^
nominated the fairest institutions, andvliichib!
gentleman had particularized as the debt tut
taxes, the Judiciary, and the Mint? Yes,5ir.ti'
gentleman from Virginia did takeaYiewofib«
fair institutions, and did show, whatever m;?;
have been the motives of their authors, that ths
inevitable tendency was to strengthen the pore
of the Executive. It is this undue influenwi
the Executive power of the Government that «
wish to reduce ; it is this influence that we Ta5
to confine within its proper limits, in order -
prevent the Government from taking that cms
which most Republican Governments have hat-
tofore taken ; to prevent it from arrivipg at ite
goal where the spirit of republicanism is IojLi*
monarchy commences. Permit me to ask»
fenlleman from Delaware if he was serioujww
e said there were no friends to monarchy in J^*^
country ? Does he not recollect a proposju-*
that was made in the Greneral Convention, ^j--^
our present Constitution was framed? hi^^
he not recollect by whom that proposiiioaj**
made? The form of Government comm^
that proposition bore, indeed, the name of i»*"
public, but was marked with the strongest '*
tures of monarchy and aristocracy. The tu*
Ma^fistrate and Senate were to hold their ii^
durmg good behaviour, or, as gentlemen nowc^y--
tend, for life; the Chief Magistrate was to b*^
an absolute negative on all laws, and ^^^^t.^
rection of war, after its commencement; theo^j^
ate to have the exclusive right to declareji^
the Governors of the respective Slates to bear
pointed by the General Government, and to n^^
an absolute negative on the laws of l^^^^T
All the militia of the States was to be under 0<
direction of the General Government, by vt^-
the militia officers were to be appointed. ^
immediate representatives of the f^^V^^^^^L^
be chosen for three years, but their powers
not defined; it is certain however, that they cj
pass no laws which were not under the coa -
and subject to the rejection of the Senate*^
Chief Magistrate, who were placed abore^'
01
HISTORY OF CONGRESS.
802
'ebruary, 1802.
Judiciary System.
H. opR.
poQsibility to the nation. When I say "all re-
ponsibility," I mean not to forget that they were
able to impeachment for corrupt conduct in of-
ce ; yet it may be remembered, and the history
f other nations warrants the opinion, that rulers
lay be guilty of ten thousand oppressions, with-
ut the possibility of proving that their conduct
T2is founded on corruption. These impeach-
lents, too, were to be tried, not by persons hold-
ng their appointments from the people, or respon-
ible to them, but by the chief judge of each State,
/ho it was expressly provided should hold his
ffice during good behaviour. That this proposi-
ion was made, no gentleman will doubt; or if a
loubt rests on the mind of any man, I refer him
o members of the General Convention who are
low present, and who agree in political opinion
vith our opponents. I venture to hazard tne as-
eriion, that the information I have given will be
bund to be correct, because I have derived it from
he most authentic source — from members of the
I^onvention. in whose hands copies of the plan are
low to be seen, which were taken by them at the
ime. If, however, my information is incorrect,
here are gentlemen now in my view who can fur-
lisb the means of setting me right, and I call upon
ny adversaries to contradict me upon anyauthor-
ty whatever. But, sir. I have no apprehension
hat I shall be contradicted ; gentlemen are too
nrell acquainted with the fact to risk a controver-
;y about it; for it has been published and com-
nented on in every Siate of the Union, and never
ms been denied. Among other publications, I
lave one in my hand, of an official nature, given
,0 the world by a member of the Convention in
lis official capacity, and bearing an authenticity
that is not to be disputed. It is, sir, a communi-
cation made in the month of January, in the
^ear 1788, to the Legislature of Maryland, by Lu-
ther Martin, Esq., one of the dele^tes from that
State to the General Convention, m which he as-
signs his reasons for refusing to sign the Consti-
tution. After having said that there were three
parties in the Convention, with different views
and sentiments, he proceeds, in the tenth page :
" One party, whose object and wiih it was to abolish
and annihilate all State Governments, and to bring
forward one General Government over this extensive
continent, of a monarchical nature, under certain re-
Btrictions and limitations. Those who openly avowed
this sentiment were, it is true, but few, yet it is equally
trae that there was a considerable number who did not
openly avow it, who were, by myself and many others
of the Convention, considered as being in reality fa-
vorers of that sentiment, and, acting upon those princi-
ples, covertly endeavoring to carry into effect what they
well knew openly and avowedly could not be accom-
plished.''
After this, let no man doubt that there are ad-
vocates for monarchy in this country, and advo-
cates too who have been high in the confidence of
the nation; for we have been told that they were
members of the General Convention, and were anx-
ious to give the essence of monarchy to that Con-
stitution under which we now live. Nor should
it be forgotten, that we have heard from another
7th Con.— 26
authority, at one time at least very much respected
by federal gentlemen, that a monarchical Govern-
i ment with an aristocratic and a democratic branch.
I was not only a Republic, but the best kind of
I Republic.
I # But, Mr. Chairman, if there are friends to mon-
> archy in this country, who think that the nature
and constitution of man will bear no other form
of Government, it is not for me to censure them,
I thank Grod we are free, and that there is no more
persecution for political than religious opinion.
Yet while I refrain from censuring, I will also take
the liberty of saying that I never will trust those
who entertain such opinions, but will at all times
use my endeavors, feeble as they may be, to cor-
rect such of their errors as in my judgment may
have an injurious operation either upon the Gov-
ernment or the nation.
When we attempt to correct these errors, let
us not be told that we are about to prostrate the
Constitution. The Constitution is as dear to us as
to our adversaries, and we will so as far to sup-
port it. It is by repairing the breaches that we
mean to save it, and to set it on a firm and lasting
foundation, that shall resist the attacks of its ene-
mies, and defy the encroachments of ambition.
We are yet a young nation, and must learn wis-
dom from the experience of others. By avoiding
the course which other nations have steered, we
shall avoid likewise their catastrophe. Public
debts, standing armies, and heavy taxes, have con-
verted the English nation into a mere machine to
be used at the pleasure of the Crown. After
havinfi^ struggled nearly six hundred years for
their liberties, they now find themselves almost
at the same point from which their ancestors set
out. This is not barely an opinion of my own.
formed upon cursory observation, but is sanctioned
by the authority of a universally admired writer,
known to most of us. Sir William Blackstone,
in the fourth volume of his valuable commen-
taries on the laws of England, speaking of the
various reductions that have been made in the
prerogative of the Crown since the Revolution of
16S8, and the consequent apparent advantacres
derived to the nation, uses a language which I
fear is too applicable to our own situation:
'*Yet, though these provisions have in appearance,
and nominally, reduced the strength of the Executive
power to a much lower ebb than in the preceding
period, if, on the other hand, we throw into the opposite
scale (what perhaps the immoderate reduction of the
ancient prerogative may have rendered in some degree
necessary) the vast acquisition of force arising from
the riot act and the annual expenditure of a standing
army, and the vast acquisition of personal attachment,
arising from the magnitude of the national debt, and
the manner of levying those yearly millions that are
appropriated to pay the interest ; we shall find that the
Crown has gradually and imperceptibly gained almost
as much in influence, as it has apparently lost in pre-
rogative."— ^p. 440.
Mr. Chairman, if a man acquainted with the
history of our Government, would attend to the
remarks just read, he would suppose that this was
the chart by which our political course had been
803
HISTORY OF CONGRESS.
804
H. OP R.
Judiciary System.
February, I&02.
Bteered. It is true we have had no riot act, but
we have had a Sedition act, calculated to secure
the conduct of the Executive from free and full
investigation ; we have had an army, and still
have a small one, securing to the Executive an
immensity of patronage; and we have a large
national ^ebt. lor the payment of the principal
and interest of which it is necessary to collect
^yearly millions," by means of a cloud of officers
spread over the face of the country. By repealing
a part of the taxes from which a part of this
money has been raised, we not only lessen the
burdens of the people, but we likewise discharge
a lar^e portion of those officers who are appointed
by the Executive, and who add greatly to his
influence.
This debt, which now hangs as a dead weight
about us, has been called the price of our inde-
pendence, and has been spoken of as a debt due to
the " war-worn soldier," which we assumed and
funded to alleviate his sufferings. This position
I cannot assent to. When the veteran soldier re-
turned from the fatigues and hardships of the war,
to enjoy domestic comfort, he brought with him,
as an evidence of the service he had rendered,
nothing but his certificates and his wounds. They
were, indeed, honorable testimonials ; the latter he
felt would remain with him while life lasted, and
the former he held with the hope that, one day or
other, his country would be in a situation to pay
him; but the hard hand of poverty pressed upon
him, and stern necessity compelled him to part
with them for a pittance. The rich and cunning
speculator, who had sheltered himself from the
storm, now came out to prey upon his distress,
and, for two shillings and sixpence in the pound,
he purchased this poor reward of toil and hard-
ship. When you were about to make provision
for the payment of this debt, you were called on,
loudly called on, by the voice of humanity, by the
spirit of justice, to make a discrimination in favor
of the soldier. He asked you to give to the spec-
ulator what the speculator had advanced ; but to
§ive the balance to the poor, though valiant sol-
ier, who had faithfully earned it in the frozen re-
gionsofCanada,or the burning sandsof South Car-
olina ; you regarded him not ; to his tale of distress
you turned a deaf ear; his services and his suffer-
ings were forgotten ; the cold and hunger he had
endured, the blood be had spilt, were no longer
remembered ; you cast him upon the unfeeling
world, a miserable dependent upon charity for
subsistence. Let not then the gentleman from
Delaware call this debt the price of our independ-
ence, or a compensation to the war-worn soldier.
To him it was a poor compensation indeed. Its
effect was to intrench yourselves around by rich
speculators, whose interest and influence you se-
cured, and who would be ready to support you in
any measures, provided you would insure them
the payment of the interest on that debt, which
was funded for their benefit, but which was cre-
ated at the hazard and expense of a brave and
meritorious soldiery. Prom motives of a shame-
ful policy you enabled the proud speculator to roll
along in his gilded chariot, while the hardy vete-
ran, who had fought and bled for your libernei
was left to toil for his support, or to heg bis breiL
from door to door.
But this debt, iniquitous as we deem the maa-
ner of its settlement, we mean to discharge; ts:
we mean not to perpetuate it; it is no part ofov.
political creed that "a public debt is a poblt
blessing." We will, I trust, make ample prorj-
sion for its final redemption ; and Xfrhen in a fev
days a proposition shall be submitted for the u-
nual appropriation of seven millions and ihm
hundred thousand dollars to this object, I cbai-
lenge gentlemen on the other side oi the Hoase,
who express so much anxiety about puUic faiti,
to be as forward in support of this measure as I
shall be. We will then show to the Ameneat
nation who are most inclined to support the pob-
lie credit ; whether those who are desirous of par-
ing the debt, or those who are anxious for its per-
petuation.
The member from Delaware told us that iW
gentleman from Virginia (Mr. Qie^gs) after ei-
hausting one quiver, had unlocked another u£
discharged it upon the judges ; those judges whost
victims he has never heard of. If that gentlenm
has 'never heard of a judge's stoopiug frorai^
bench to look for victims, I have. Liet me direc:
his attention even to his own State. Let me sm
him if he has never heard of a judge commaiidtC{
the district/ittomey to search a file of Dewspapen
in order to discover something upon ^which a proe-
ecution miffht be grounded? uet me ask him^
that judge did not detain the grand jury at a bQ»
season of the year, for the avowed purpos cf
finding an indictment, not upon any fact knani
to the judge, but upon a mere report whick ^
judge had heard, that there was a seditious papc
printed in the State. This looks like stoopiiZ
from the bench to search for a victim. Bat fi^
ffentleman frofti Delaware looks to the Execotin
for victims — for those widows and orphans wfc:
demand the commiseration of the pcnpJe. Mi
N. said he could not conceive how widows aad
orphans could be affected by the Bxecotive. for
he did not know that widows and orphans \ai
been dismissed from office, as he never had under-
stood that it was usual to give them appointme&Q
He had heard that some persons had been dis-
missed for being public defaulters, and others (a
revolutionary toryism ; but he bad not heard ik:
any had been dismissed for refusing to sij^o an t^-
dress offering up adulation to Presidential Taniir
He had indeed understood that two men had bees
restored to office, who were dismissed under a
former Administration for this crying sin. E:-
why all this uneasiness about dismissals from.
office? Have the friends of gentlemen heretof^a?
been so eager in their pursuit of the loaves aei
fishes, that they are now unwilling lo surrescV
them 1 Have tney enjoyed them with such pece-
liar deliffht, that they now murmur at the exr-
cise of tne Constitutional right which the Prp»-
dent possesses of displacing from office all tho5C
whom he thinks unfit for the duties, and of pel-
ting in those who, in his opinion, are better qmi.-
fied ? Surely when gentlemen are so strenuoc^l.*
505
HISTORY OF CONGRESS.
806
Ei*EBRUARY, 1803.
Judiciary Syate?n,
H. opR.
contending for the Constitutional rights of the
Fudiciary, they ought not to murmur at the exer-
cise of a Constitutional right by the Executive.
Nfor do I think they can with any propriety com-
plain, when it is recollected, that although the
President had the power of disposing of all offices,
ret he has left by far the larger proportion in the
>ossession of men who are personally and politi-
cally his enemies. From the great discontent ex-
>ressed on the subject of removals, it might seem
:hat the judges themselves were rather the objects
>f general solicitude, than the system or Consti-
;utional privileges of the Judiciary.
This Judiciary, however, the gentleman from
Delaware has said, in that same spirit of Chris-
;ian meekness which appears to have character-
ized him throughout, he never considered a sanc-
:uary, because he knew that nothing was sacred
n the eyes of infidels. May I be permitted to
isk, what the honorable gentleman means by in-
idels? The expression excited some degree of
mrprise, because, as the gentleman had, on a for-
xier occasion, talked so much of Christian meek-
less, I had flattered myself that he felt some little
}f Christian charity. The hope. 1 fear, was a
rain one. The honorable member and his friends
tre orthodox; we and our constituents are here-
ics. If, sir, an unqualified aversion to the high-
iashioned opinion, that a public debt is a pu^ilic
>lessing; if a total unbelief in the propriety of
aying heavy and oppressive taxes, to pay a use-
ess and expensive army ; if the strongest repro-
bation of every law calculated to restrain the
iberty of the press, and thereby prevent the na-
ion Irom inquiring into its own concerns; if the
sntire rejection of the odious principle, that the
*eins of Government are to be placed m the hands
>f a set of men who are independent of and be-
yond the control of the people, afford any evidence
:>f infidelity, then do I avow myself as much an
.nfidel as any man Hiring. And if Christianity
ind infidelity be the two principles, diametrically
apposed to each other, it is most certain that the
gentleman and myself are as far asunder as if we
inhabited different hemispheres. He is a political
christian, and I a political infidel. He offers up
iiis sacrifices upon the altar of independent rulers ;
[ bow at the wide distance I trust will ever be
preserved between us. while the gentleman holds
Lis present political creed.
Was there a man who did not feel the highest
astonishment at the honorable member's doctrine
in relation to the common law? Is there any one
who believes with him. that *^ stripped of the com-
^ mon law, we have neither Constitution nor Qov-
' ernment ; that our Constitution would be unin-
' telligible, and our statutes useless ?" Sir, the gen-
tleman tells us " we must leave it to the discretion
' of the judges to declare what belongs to us, and
' what is unsuitable.*' He says we have nothing
to do with anything of a monarchical tendency ;
yet even upon his own ground this is a question
for the discretion of the judges. Have the people
of this country ever consented to vest the judges
with this extensive discretionary power? Have
they ever sanctioned the principle that the judges
should make laws for them instead of their Rep-
resentatives? Is it not legislation to all intents
and purposes, when your judges are authorized
to introduce at pleasure tne laws of a foreign
country, to arm themselves with power? The
American people never dreamed of such a princi-
ple in the Constitution, and never will submit to
it. They never ought to submit to it. It is giv-
ing to the judc^es a power infinitely more trans-
cendant than that vested in any other branch of
the Government. The Legislature cannot recog-
nise any principle of the common law having a
monarcnical tendency ; yet this principle the
judges may recognise, if you leave it to their dis-
cretion to introduce any part of the common law
which they may think proper.
I have so often heard the gentleman from Dela-
ware maintain upon this floor an opinion that the
common law of England was the common law of
the United States in their national capacity, and
that therefore the Federal courts have a general
common law jurisdiction, that I think proper to
offer some remarks upon it, lest silence on our part
should be construed mto acquiescence.
Let us then examine this subject, and inquire
when and how the common law was introduced
into this country. The gentleman from Dela-
ware supposes it was brought here by our fore-
fathers at the time of their emigration. To this
opinion I might oppose that of the celebrated
Judge Blackstone, who, in the first volume of his
Commentaries on the laws of England declares,
in the most positive terms, that the American
plantations were either ceded by treaties, or con-
quered from the natives ; and that therefore the
common law of England, as such, had no force or
authority there ; but wherever it is in force, it arises
from their having ingrafted it into their own
municipal regulations. [Mr. Nicholson read
sundry extracts from the 106th, 107th 108th and
109th pages of 1st vol. of Blackstone, to show that
this was the opinion of the learned Judge.] For
this opinion, however, sir, of Judge Blackstone. I
do not contend. I have seen it very powerfully
opposed by able writers, and I think the usage
and practice of the colonies themselves furnish a
sufficient argument against i(. It may perhaps
be correct in its application to New York, New
Jersey, Pennsylvania, and Delaware, which. I be-
lieve, were originally settled by the Dutcn and
Swedes, and were ceded to the English by the
Treaty of Breda, in the year 1667. These were
therefore conquered countries, and the common
law of England could not have been brought into
them by the original emigrants. It may have
been since practised under in these States, but is
indebted for its introduction either to express
statute, or to common usage. It goes however to
establish the principle for which I contend, that
our forefathers brought with them no law having
a uniform operation over all the extent of country
now contained within the limits of the United
Stales ; for when gentlemen speak of a common
law of the United States, they must mean a law
uniform throughout the whole extent, and equally
obligatory upon the whole nation. I entertain no
807
HISTORY OF CONGRESS.
SOS
H. OP R.
Judiciary System,
February. ISOS.
doubt myself that the common law of England, or
so much of it as was applicable to their situation,
was brought over by ihe original emigrants, to
New England, to Maryland, to Virginia, and the
other Southern States; and that it continued to
be the law of the provinces until altered by fheir
respective Legislatures. But it was the law of
each province only, and not a general law opera-
ling upon the whole ; for each was independent
of the other, and the municipal regulations of the
one could not bind the other. Thus the rule of
succession to real estate by primogeniture continu-
ed in most of the provinces till about the com-
mencement of the Kevolution ; but in Massachu-
setts, as early as the year 1648, they declared by
law that lands should descend and be held in com-
mon among the children. In Virginia a fieri
fajcias could not be laid on lands, nor can it even
at this time ; but in Maryland this rule of the com-
mon law was changed by statute in the reign of
George the Second, and lands were made equally
liable to debts as personal property. In Massachu-
setts, blasphemy and perjury were made capital
offences by their own statutes, neither of which
were capital at common law, and their punish-
ment has been otherwise provided for in other
States, particularly in Maryland. The doctrine
of forfeitures was entirely Sone away in Massa-
chusetts by their own local laws, and traitors and
felons were allowed to devise away their lands,
goods, and chattels; while, in most of the other
provinces, the forfeiture upon conviction and at-
tainder continued as at common law. Number-
less instances might be adduced, in addition to
these, to show the total disagreement of the vari-
ous changes made in the common law by the sev-
eral Provincial Legislatures at diflferent times; but
I apprehend those mentioned are sufficient to con-
vince any candid mind, that there was no general
uniform law or rule of conduct operating upon the
respective Colonies prior to their confederation for
the purposes of general defence. Permit me like-
wise to remark, that even if the common law had
remained unaltered by the several Colonial Qov-
erninents, yet it could not have been considered as
a uniform rule of law operating upon them as a
nation, because each was independent of the other
and had emigrated at different periods, while the
common law of England was undergoing the
most material changes by act of Parliament. The
colonization of Virginia took place in the reign of
Clueen Elizabeth, that of Maryland in the reign
ofCharles the First,and that ofGeorgia in the reign
of George the Second, In the intervening spaces
of time, the common law had been greatly amelio-
rated ; and if it is now to be insisted on as con-
stituting the law of the United States, in conse-
quence of its introduction by our forefathers at the
time of their emigration, we should be at a loss to
determine which of these periods we should fix on
as that which was to give the character to the
^ommon law ; whether it is to be the common law
in force in the reign of Elizabeth, or the common
law as ameliorated by statute, between that time
and the reign of George the Second. I need not
enter into a detail of these changes, for they will
readily occur to most gentlemen who hear ns:
but as very material changes were inade^ I think
it cannot be contended that the law as eziscioga:
one period or the other could have any uniforc.
operation upon the several colonies, who were.i.:
to each other, independent States governed by the:
own laws, and without any connexion, comcics
government, or general law, prior to ihe declan-
tion of independence.
These observations have been made with a view
of showing, that as British colonies, although etd
might have adopted the common law of Eoglici
for its own purposes, yet each having adopted J
at different periods,ana modified it in rarious wap
there was no uniformity in the law ; and erec if
there had been a uniformity, we were not a nitieo.
and therefore could have no law comnioa (o t&e
whole. These arguments would likewise apply
to show that it was not adopted by the United
States in their confederated capacity when tbey
first took a rank among the nations of theeanh.
or in other words, when they declared themselTea
independent of Great Britain, and associated fci
the purposes of common defence. The object oi
this confederation was defence only, and not inier-
nal government. The States each became soTh
reign ahd independent, and reserved to themse>ei
the power of self-government. Many of ihea,
by their constitutions, adopted the common lav
as it had been modified by their own prorincialstii-
utes, and, gave to their Legislatures the power e:
changing it whenever circumstances might Tt-
quire. Congress had no powers given to then:
but everything was done by recommendation, asd
when afterwards certain powers were vested ia
Congress by the Articles or Confederation in 1T5L
they were of a general nature, relating to the wv
only, and nothing like an authority to establLsi
courts or to grant judicial powers ; and I ihiDk i:
would look like an absurdity to say that the com-
mon law of England became at that time tht com-
mon law of the United States, when the oair body
representing the United States (that fs, Congress)
had no power to establish tribunals to carry this
into operation. But, sir, I think it will not be se-
riously contended, that the common law of Ec^
land became the common law of the United States
either as a consequence of the emigration of q^
forefathers, or by virtue of the Declaration of Ift-
dependence, or by the Articles of Confederation. !
shall therefore beg leave to examineanothergroGD-i
which gentlemen may think more tenable.
We have been told by the member from D^I^
ware, that without the common law the Constiic-
tion would be a dead letter. Every State in ihi
Union, he says, has adopted it ; and he asks wkT
it is denied to the Federal Constitution ? I cocl:
have wished that on this subject, as well as m&cT
others, the gentleman had offered us sometbicr
like argument, instead of mere wild and arbitrary
assertion. However highly we may estimate his
talents, he must not expect that we are to yield::
his political dogmas. We flatter ourselves ttu:
the Constitution may stand and flourish withoo:
those invigorating principles of the common law.
which the gentleman is anxious to infuse into tL
809
HISTORY OF CONGRESS.
February, 1802.
Judiciary Syttem.
810
H. opR
I agree that it has been adopted under various
modificatioDs b^ the respectitrc States ; but I do
not admit that it has been adopted by the Federal
Constitution. Where the States have adopted it,
it has been by a solemn and positive act, expressly
recognisino^ it as a part of their code of laws. I
might chaUenge the gentleman to put his finger on
any partofthe Federal Constitution containingany
recognition of it whatever, as a law of the United
States. Is it to be found in the enunaeration of
the powers vested in the Legislature? Is it to be
found in the enumeration ofthe powers vested in
the Executive, or in the enumeration of the pow-
ers vested in the Judiciary ? It is to be found in
neither. Is this adoption of the common law to
be found in any article contained in the original
instrument, or in any of the amendments after-
wards ingrafted upon it? In one of the amend-
ments, we fiod the words common law used, but I
I)resume it will not be contended that the common
aw was adopted by this article ; for it must be
obvious to the plainest legal understanding, that
the words ^* suits at common law" are only used in
contradistinction to suits in equity. In the latter
cases, the trial by jury is not used, but in the for-
mer the trial by jury is preserved by this amend-
ment. And when the rules of the common law
are mentioned in the latter part of the same article,
they are merely referred to as rules of proceeding
which are to govern in motions for new trials, and
a few other cases, where facts decided by the ver-
dict of a jury may here-examined; but it can have
no operation to confer jurisdiction. Might I not
be permitted to ask why the common law of Eng-
land was adopted by our Constitution more than
the laws of any other nation ; more than the laws
of France, Spain, Sweden or Holland? When
the Constitution was formed we were more inti-
mately connected with those countries than with
England, because with some of them we had
treaties of alliance, with all we had treaties of
<:ommerce. Besides, if the common law of Eng-
land was adopted by the Constitution, a very se-
rious question might arise whether the common
law did not thereby become a part of the Con-
stitution ; and, if a part of the Constitution, all
laws since passed by Congress contrary to the
principles of the common law would be null and
void ; such, for instance, as the act declaring the
punishment of manslaughter and several others.
That this would be a fair construction may be gath-
ered from the opinions of those who formed the con-
stitutions of New York, New Jersey, Delaware..
Maryland and South Carolina, and likewise from
the Convention of Virginia ; who all retained the
common law. but expressly declared it to be sub-
i'ect to the future alterations of their respective
!jeffislatures. Now, if the common law was adopt-
ed by the Constitution without any provision that
it should be subject to future alteration by Con-
gress, a question might certainly arise whether
Congress would have the power of passing any
law varying the common law. However, if this
difficulty is got over, another not very inferior in
ioiportance immediatelv presents itself. If the
Constitution adopted tne common law, or the
common law attached itself to the Constitution,
it immediately became a law of the United States,
and is paramount to the laws and constitutions of
the individual Stales. Wherever, therefore, the
constitutions or laws of the States modified the
common law, such modification was of no efifect ;
for whenever a law of the United States clashes
with the constitution or law of one of the States,
the State Constitution or law must give way, as
has been solemnly decided by the Federal courts
in more instances than one*, particularly in the
case of Vanhorne's lessee against Dorrance, in the
circuit court of Pennsylvania^ and in the case of
Ware and Hilton upon a writ of error in the Su-
preme Court of the United States. Whether the
people of this country are inclined to submit to
the train of evils which would follow the establish-
ment of this principle, does not, I presume, admit
of a doubt.
The gentleman from Delaware, however, seems
to consider the existence of the common law, as
a law of the United States, as a matter of neces-
sity. He tells you if you go into your courts of jus-
tice with the mere statutes you cannot proceed astep,
vou cannot even punish a contempt. I shall here
be allowed to ask if it is the idea of that gentle-
man that our Federal courts have an authority to
enforce the common law doctrine of contempts?
If by the operations of the common law they have
a right to punish one contempt, I presume they
have the same right to punish all. Let us then
take a view of these common law contempts.
If one man strikes another in the superior courts
in England, or even at the assizes, it is a contempt
of a very high nature, and is punished at com-
mon law by cutting off the right hand, imprison-
ment for life, forfeiture of goods and chattels, and
of the profits of land during life. To rescue a
prisoner from any of the said courts is another
very high contempt, and is punished by the com-
mon law with imprisonment for life, forfeiture of
f[oods and chattels, and of the profits of land for
ife. There are a great variety of smaller offences
likewise denominated contempts, for which the
common law inflicts fine and imprisonment, and
if the court pleases, corporal or other infamous
punishment. This is a slight specimen of that
common law, upon which the member from Del-
aware has pronounced so high an eulogium ; and
these are the punishments which your courts of
justice could not inflict without the wholesome
assistance of the common law. But sir, it may
be shown that the courts of justice of the United
States do not require the aid of (he common law
to enable them to punish contempts; for it is de-
clared expressly by the seventeenth section ofthe
act of September 1789, establishing the courts,
that they shalP^ have power to punish by fine ana
imprisonment, all contempts of authority in any
case or hearing before them." The gentleman
therefore was grossly mistaken when he said it
was necessary to call in the common law, to au-
thorize the courts to punish for contempts; al-
though the act of Cons^ress does not go quite so
far as the mild provisions of the common law,
which cut off the right arm of the offender. By
811
HISTORY OF CONGRESS.
812
H. OP R.
Judiciary System.
February. 19(^>
this act it is likewise declared, that the Federal
courts shall have power to grant new trials, and to
administer all necessary oaths and affirmations.
This was certainly quite nu^tory, if the com-
mon law had attached itself to the Constitution ;
because these are powers which the State courts
and those of England exercise by virtue of the
common law ; and if it had been the idea of those
who have gone before us, that this common law
was the law of the United States, they would not
have vested in the courts the same authorities
which they had by the common law. I believe,
sir, I could take up our laws relative to the Judi-
cial establishment, from the commencement of the
Government to the present day, and could show
that Congress had from time to time vested in the
courts and judges a variety of powers, which they
would have had, if the common law had been the
law of the United States in their Federal capa-
city. But I will refer to one instance only, where
it was thought necessary to pass a special law for
the purpose of giving to vour judges one of the
lowest common law authorities. In the year
1798, an act, of one section only, passed, authori-
zing the judges of the Supreme Court, and of the
several district courts, to hold to security of the
peace and good behaviour in any ease arising
under the Constitution and laws of the United
States. At common law the judges are by virtue
of their commissions, ex officio conservators of
the peace, and if this law had been the Federal
law, there could have been no necessity for pass-
ing the act just alluded to.
Again, by the common law, a person charged
with treason is allowed a peremptory challenge of
thirty-five jurors ; yet this right of challenge is
likewise expressly given by the act of Congress
passed in 1789. The same act provides for the
punishment of murder, in places under the exclu-
sive jurisdiction of the United States, as forts,
arsenals, dbc, and limits the number of challen-
ges to twenty ; yet these provisions are precisely
the same as at common law, amended by a variety
of statutes a long time before the emigration of
our ancestors ; and I presume it is not contended
that the common law was brought here without
the changes antecedently made. If, however, the
common law was introduced originally by our
forefathers, and afterwards attached itself to our
Constitution by its own wonderful magic, I ask
why not the statute law likewise ? The same
juridical principle will apply as well to the stat-
ute law as the common law. and the two together
will furnish gentlemen with an extensive field to
wander in, wnich I cheerfully abandon to them.
I think, sir, I have fully proved that the com-
mon law of England was not introduced by our
ancestors at the time of their emigration, as a
general and uniform law prevailing over all the
extent of country comprised within the present
limits of the United Slates ; because the several
colonies were planted at several periods, some of
which were as remote from each other as one
hundred and fifty years ; because it was changed
and modified at pleasure by the respective prov-
inces, and because we were not at that time a na-
tion, and therefore required no general unifom
law to govern us. I think I have proved tnat u
was not adopted by the Declaration of lndep«t-
dencc, because we associated only for mutual de*
fence against a common enemy, and there wm
no general questions among us which could po»-
sibly require the interference of common lavr.t^
Congress had no power to establish courts to carrr
the law into execution. And I think I have prorej
that it was not adopted by the Constitution, bt-
cause there is no part of (he Coastitution declaris^
it to be the law of the land ; because its implied
adoption, without limitation or restraint, wocM
either make it a part of the Constitution its^
and thereby prevent a most valuable exercise i^f
Legislative authority, or by making it a kir or
the United States, would give it a contrdiifl^ani
repealing or nullifying power over the law^aotf
constitutions of the individual States; lod be-
cause almost every Congress, by enacting a T^riety
of provisions already established by the coramoa
law, expressed an opinion, most unequivocaliv.
that the common law was not the law of i^e
United States in their national capacity.
The common law can have no possible eM-
ence in this country, but as it has been introduced
by the different States. Some have engros?»e4ii
into their body of laws by their constitution^ ; ott-
ers by express statute, and in one or two instiDCR
perhaps, the States have used and practised it inia
their original colonization: for it is not denied
that the several colonies brought with them sod
both of the statute and common laws as were ap-
plicable to their situation. But the common bv
as introduced, used, and practised in any one State
can only be considered as a State law. After ii
wa.s retained by Maryland, by an ezpre&s arttde
of her constitution, it was no longer the commsi
law of England as such, but thereby became the
law of the State of Maryland, under the wiom
modifications which had been made by tbe|r&-
vincial assemblies ; and such it remains tr this
day. As a State law then, it cannot be constraed
to give jurisdiction to the Federal courts uy
more than the numerons acts of Assembly wbica
have passed both before and since the Re volatioa.
By the common law of England, as it exisu there.
and as it likewise exists in Maryland, kidnappnc.
or the forcible abduction or stealing of man, or
woman, or child, is an offence punishable witk
fine, imprisonment, and pillory : a statute of Mart-
lana declares the stealing of a slave Co be a capi-
tal offence. Now neither of these laws can gire
the Federal courts any jurisdiction over these o^
fences, because they are both State laws, although
one of them is likewise a part of the commoD bv
of England.
Murder is an offence punishable, I believe; in
all the States with death, and remains as at com-
mon law, modified by several old statutes, which
our forefathers brought with them at the time of
their emigration, yet the Federal courts can bare
no jurisdiction over the crime of murder, mileff
committed in a fort or arsenal; and this isexpres^r
declared by act of Congress to be punishable witk
death if committed in those places. And permit
813
HISTORY OF CONGRESS.
814
February, 1802.
Judiciary System.
H. opR.
me once again to observe, that this shows that
Congress at the time of passing the law (in
1789) entertained no idea that the Federal courts
coDld punish murder by virtue of any other au-
thority than jthat expressly derived from a statute.
'* Cursing or wishing ill to the Kins." is an of-
fence punishable at common law by one, impris-
onment, and pillory ; but this is not the law of any
of the States, because after the Declaration of In-
dependence we had no King, and therefore it was
not applicable to our situation. To curse or wish
ill to the Grovernor of a State, could not be pun-
ished, although he is the Chief Magistrate of the
State; because cursing or wishing ill to the King of
England is acontempt against his person and Gov-
ernment: but in America we do not regard the
majesty of persons, nor do we admit that the Gov-
ernment belongs to any one roan, but to the whole
people. However, even if this part of the com-
moo law did form any part of the codes of the re-
spective States, it could give no jurisdiction to the
Federal courts, being a State law. It is with
much reffret, Mr. Chairman, I have heard that a
man in New Jersey was indicted at common law
and punished by a Federal court, for expressing
a ludicrous wish in relation to a former President
of the United States — a personage not known to
the common law. Yet common law jurisdiction
was assumed by the Federal court over this of-
fence, and the sacred person of the President was
substituted for the sacred person of the Kins.
In fine, sir, my opinion is, and I sincerely be-
lieve it to be a correct and Constitutional opinion,
that the common law of England, either as such
or as it has been introduced into the several
States, is not the common law of the United
States in their national or federal capacity, and
therefore cannot operate to give to the Federal
courts any j urisdiction. On the present occasion,
I wish to express my decided disapprobation of the
doctrine contended for by the gentleman from
Delaware, that the Federal judges have a discre-
tionary power to introduce such parts of the com-
mon law as they please, and as they may think do
or do not belong to us. This discretionary power
in a judge is dangerous to liberty. It will sap the
foundation of your Constitution itself. It will
place the life and property of every man in the
community in the most precarious situation. All
security will be lost, all confidence will be destroy-
ed. To vest a discretionary power of this kind in
a jud^e, is to vest him with an arbitrary and un-
constitutional power. That able and upright
judge, the most excellent Lord Camden, who was
an ornament not only to his profession, but to his
country and to human nature, declares, that " the
* discretion of a jud^e is the law of tyrants ; it is
* always unknown ; it is casual, and depends upon
' constitution, temper, and habit. In the best it
' is often caprice ; in the worst it is every vice,
' folly, and passion, to which human nature is
' liable."
I have dwelt longer on this subject, Mr. Chair-
man, than I intended ; but as it is important, I
trust I shall obtain the pjardon of the Committee ;
thinking as I do, it was impossible for me to have
said less. Having several times heard the gentle*
man from Delaware maintain a similar doctrine
on this floor, I have to-day thought it my duty to
examine it ; to state some reasons to show thedoo*
trine to be incorrect, and others why it ought not
to be admitted. How far I have succeeded the
Committee will decide. Infinitely more might
be said, but as the evening is advancing I will no
longer trespass on your patience now. To-mor-
row I will again ask the indulgence of the Com-
mittee for the purpose of offering some remarks
more immediately connected with the subject
under consideration.
Mr. N. sat down; the Committee rose, and the
House adjourned.
Saturday, February 27.
A representation of the inhabitants of Fairfield
county, in the Northwestern Territory of the
United States, was presented to the House and
read, praying that the said Territory may be ad-
mitted as a State, into the Federal Union, on an
equal fooling with the original States. — Referred.
JUDICIARY SYSTEM.
The House again resolved itself into a Commit-
tee on the bill sent from the Senate, entitled "An
act to repeal certain acts respecting the organiza-
tion of the Courts of the United States, and for
other purposes."
Mr. Nicholson (in continuation) offered his
acknowledgments to the Committee for consent-
ing to hear him again to-day, after the very tedi-
ous, though he hoped not uninteresting discussion
of yesterday, in relation to the common law.
From the construction which had been given to
our laws and Constitution, not only in the House,
but as he had understood by some of the Federal
Judiciary, he thought it the duty of every man to
direct his attention to this subject, as it involved
principles more important than were apparent at
first view. Under this impression he had offered
some observations to the Committee, which he
flattered himself would not be totally unaccepta-
ble. In doing this he had been as brief as possi-
ble, for he well knew it would fill a volume, if all
were collected which might be said in opposition
to the opinion that the common law of England
was the common law of America, as a nation.
He would now, however, proceed to the discus-
sion of the subject more immediately under con-
sideration.
As I have already occupied more time than I
either expected or wished, I have no doubt I shall
be excused for passing over the immense folio of
extraneous matter which the gentleman from Del-
aware has introduced. It will afford me an op-
portunity, at the same time, of passing by that list
of names which the gentleman held up to our
view, and which he exhibited in colors by no
means flattering. Were I inclined to pursue the
course which he has pointed out to me, I might
present a catalogue of his political friends, covered
with as miserable a daubing as bis own ; but I dis-
dain it. Private feeling and private character
815
HISTORY OP CONGRESS.
816
H. OP R.
Judiciary System,
Fbbruabt, 1803.
shall never be made the subject of my animadver-
sioos in this House.
The expediency of the present repeal is the first
point to which gentlemen seem to have directed
their attention. In order to show the necessity of
the law of the last year, they have pointed out
numerous defects, as they suppose, in the old sys-
tem. The member from Delaware, after lavish-
ing the highest encomiums on the gentleman who
is said to be the author of that system, has under-
taken to show that it was constructed upon falla-
cious principles. The fallacy of these principles,
he says, was discovered in practice, auda new or-
ganization of the courts became necessary. Since
I have been able to form an opinion of the rela-
tive merit of the political characters in this coun-
try, there are very few indeed whose talents I
have heard more commended than those of the
gentleman alluded to. On no occasion has his
wisdom or the solidity of his judgment appeared
more conspicuous to my mind than in the forma-
tion of the first Judiciary system of the United
States. In a Government like ours, extending over
a large tract of country, and composed of sover-
eign States, independent of each other, confeder-
ated for the purpose of mutual defence and mutu-
al protection, it was rightly judged that its Judi-
cial powers should not extend to any other cases
of Judicial cognizance, than those which might be
deemed somewhat of a general nature, and whose
importance might affect the general character or
general welfare of the Union. It was foreseen
that these cases would not be very numerous, and
experience has proved the correctness of this opin-
ion ; for in the twelve years that have elapsed, but
about eight thousand four hundred suits have been
brought in the Federal courts, exclusive of Admi-
ralty causes; or about seven hundred suits for
each year in the whole of the sixteen States. Of
these, fifteen hundred now remain undecided,
which are nearly equal to those of the two last
years. In order to show the incompetency of the
courts, as existing under the old establishment,
gentlemen ought to prove that this is an unrea-
sonable number to be at this time pending. I ask
them if this does not prove as great a despatch of
business as in any courts of the world ? In the
circuit court of Maryland, I believe the same rules
have been adopted for the despatch of business as
are practised in the General or Supreme Court of
the State ; and I believe it is likewise a rule, that
causes shall continue the same length of time. By
the laws of Maryland, a cause may continue two
years in that court, and of course a cause may con-
tinue two years in the circuit court. What the
rales may be in other courts respecting the con-
tinuance of causes. I do not know, but if a similar
rule prevails in all the courts, no doubt can possi-
bly exist that business has been as well despatched
in the Federal circuit courts as it can ever be.
Most of the causes brought in the Federal courts,
I presume, are unimportant, and are controverted.
Whenever there is a controversy it is almost im-
possible to get your pleadings m a state for trial
in less than two years, where there are only iwo
terms in each year ; and this of necessity compels
a continuance for two years. My idea oo itii
point is easily exemplified :
Suppose three hundred and fifty suits brought s:
May term, 1799 - - - - - ^ 35f
The same number at October term, 1799 -
The same number at May term, 1800
The same number at October term, 1800 -
The same number at May term, 1801
ay
35i:
JL75G
It would follow that seventeen hundred and fif-
ty suits would be brought to those five terms, aci
the dockets of May, 1801. would exhibit sereD-
teen hundred and fifty suits then dependin?. L^
the first three hundred and fifty were decided ai
that time, fourteen hundred would be lefroa tht
dockets in June, 1801, at which time ibe hst oor
before us was takem But the delays wkieh are
necessarily incident to trials at the bar. and In
chancery, would furnish at least a possible pre-
sumption that the whole brought at the first term
could not readily be tried at the fifth, for want of
testimony, the defective state of the pleadings, de^
murrers, motions for new trials, and sundry othn
causes. Let me then a^ain repeat, that as fifieea
hundred suits onlyremam pending, business mas
appear to have been well despatched, and noar^
ment can be drawn from the supposed incompe
tency of the courts.
But, sir, the first objection which gentlemet
have started to the old system, arises from theitia-
erancy of the judges. They are stated to be oli
men, who have passed the meridian of life, aoj h
cannot be expected that they should ride throQTt
the continent for the purpose of holding cosrts.
They number, says the member from Delaware.
the vi^wii annorum lucubrationes, and must sow
have leisure to read, to repair the ravages of time
or, in other words, to prevent them from forget-
ting what they had before learned. I trust. Mr,
Chairman, that I feel as much rererencefor M
age as most men, and I flatter myself I am not to-
tally unacquainted with the requisite qoalibca-
tionsof a judge: but indeed gentlemen must ex-
cuse me, if I do not consent to pay a man fco:
thousand five hundred dollars a year '^ lo prevec:
him from forgetting what be had before learned."
Give nae leave, however, to ask, if these are the
evils which have been discovered by^ practice?
This old system has been called an experimenL
Permit me to ask, if these are the evils which ex-
perience alone has brought to view ?
When the great man, alluded to by the gentk-
man from Delaware, framed this svstem ; win
he defended it in the Senate of the United State
as I am told he did, with all the energies of h>
mind, against the objections which y/^ere thee
urged to it, was it not in his power to calcalau
the labor of travelling over a certain extent o:
country ? Or, if this was an exaction too great fc:
his powers, were there no men in Congress iriii
sagacity enough to discover this mighty objection ■
Was it one of the arcana left for the laborious re-
searches of the present day 1 The extent of couo-
try has not since increased. Bridges are not kept
817
HISTORY OF CONGRESS.
818
Febrcary, 1802.
Judiciary System,
H. opR.
in worse order, nor do rivers rise higher now than
they did at that time. In truth, all the means of
traveliing are more eligible and commodious. The
roads are better, the houses of entertainment more
numerous, the number of stages greatly increased,
and gentlemen are not now under the necessity of
using their own carriages. Yet, notwithstanding
these difficulties which then presented themselves,
but have since been removed, men of the most
eminent talents were readily found, who were
willing to accept the places of judges, and were
not afraid of meeting the inconveniences which
are now complained of. It cannot, therefore, be
urged with propriety that the itinerancy of the
judges is one of the objections which has been
proved by a trial of the experiment. But it is said
to be too laborious,. too fatiguing for a judge to be
compelled to ride from New Hampshire to Greor-
gia, for the purpose of holding a court. Sir, when
these courts weie first organized, the United States
were divided into three circuits ; the Eastern, the
Middle, and the Southern. Six judges were ap-
pointed, two of whom were to ride in each circuit
for the purposes of holding a court in conjunction
with the district judge. Of this, however, the
judges complained; and. for their relief, a law
passed requiring one supreme judge only to as-
sociate himself with the district judge. This was,
in fact, dividing the United States into six cir-
cuits, for no one judge was compelled to ride be-
yond the two States immediately adjoining that
in which he lived. It is true, that no judge was
obliged to go twice into the same State, until eve-
ry one of his brethren had taken his turn in it ;
3ut this was optional with them ; and if, through
:;aprice, or a desire of change, or any other cause,
ihey could not agree among themselves, 1 cannot
think that it ought to be considered a sufficient
reason to reorganize the whole system. By the
ict of 1792, they were authorized to assign to each
other the several circuits in which they were re-
ipec lively to ride ; and if they have made incon-
venient arrangements, it can only be imputed to
themselves; they are at liberty to change them
pvhenever they think proper. Why, then, is it al-
eged, that a judge was obliged to ride from New
Hampshire to Georgia, when a gentleman living
n the New England States was never compelled,
^y law, to come into any district farther South
:han Connecticut ? But no arrangement of this
cind was made. A judge residing in the Eastern
States, for the sake of pleasure, to see the coun-
:r3f , or for some other cause, we find travelling
with "all the agility of a post-boy," from New
Elampshire to Georeia, for the purpose of holding
% court ; while another, residing in the Southern
country, with the sprightliness and activity of
youth, "studying the law upon the road," has
Qown from Georgia to New Hampshire, and held
his court there. I again ask, where was the ne-
cessity of this? If they impose upon themselves
labor four or five times greater than that which
the law requires them to perform, is it right to,
3ail .this excess an evil, and impute that evil to
the law?
If the bill now upon the table should pass, let the
judges of the Supreme Court make such amend-
ments as will be agreeable to themselves. Let
the judge residing in Massachusetts confine himself
to the New England States; let the judge in
North Carolina travel Southward ; and let the other
judges perform their duties in the Middle States.
They will not then suffer the inconvenience com-
plained of. The mountains which have been
raised by the gentleman from Delaware, will fall
before Ihero. The wilderness which has sprung
up in his imagination, will be turned into fruitful
plains and pleasant villages. The judges will
have leisure to read to prevent them fronii forget-
tine what they had before learned, and will be
enabled to add to the viginti annorum htcubr(P-
iiones.
But gentlemen have resorted to another part of
the Constitution, which they say contains the re-
strictions; not indeed in express terms, but by
implication. Sir, this doctrine of implication is
a dangerous one. A departure from the letter in
order to pursue the spirit^ may lead to incalcula*
ble mischief, and must ultimately destroy the Con-
stitution itself. It leaves it to the discretion of
every succeeding Congress to give to the Consti-
tution any meanmg whatsoever, that their whim
or caprice may suggest ; to assume to themselves,
and to attach to the other branches powers never
intended to be delegated. We say that we have
the same right to repeal the law establishing in-
ferior courts, that we have to repeal the law es-
tablishing post offices and post roads, laying taxes,
or raising armies. This right would not be de-
nied but for the construction given to that part of
the Constitution which declares that " the judges
both of the supreme and inferior courts shall hold
their offices during good behaviour." The argu-
ments of gentlemen, generally, have been directed
against a position that we never meant to contend
for : against the right to remove the judges in any
other manner than by impeachment. This right we
have never insisted on ; we have never in the most
distant manner contended that the Constitution
vested us with the same power that the Parlia-
ment of England have, or that is given to the
Legislatures of Pennsylvania, Delaware, New
Jersey, and some others. Our doctrine is, that
every Congress has a right to repeal any law pass-
ed by its predecessors, except in cases where the
Constitution imposes a prohibition. We have
been told that we cannot repeal a law fixing the
President's salary, during the period for which he
was elected. This is admitted, because it is so
expressly declared in the Constitution ; nor is the
necessity so imperious, because, at the expiration
of every four years, it is in the power of Con-
gress to regulate it anew, as their judgments may
dictate. Neither can we diminish the salary of a
judge so long as he continues in office, because in
this particular the Constitution is express likewise;
but we do contend that we have an absolute, un-
controlled right to abolish all offic&s, which iiave
been created by Coagress, when in our judgment
those offices are unnecessary, and are productive
of a useless expense.
Let us examine the objections which have been
819
HISTORY OF CONGRESS.
820
H. OP R.
Judiciary System.
February, 1602.
raised to this upon that part of the Constitmioo
in which it is said that '^ the iud^res both of the sa-
' preme and inferior courts shall hold their offices
^ during good behaviour, and shall receive^ at
' staled times, a compensation for their services,
^ which shall not be diminished during their con-
' tinuance in office." It has already been stated
by some of my friends, and I shall not therefore
dwell upon it, that the prohibition contained in
these words was of two Kinds : the one ajiplying
to the Legislature, and prohibiting a diminution
of salary; the other applying to the Ezecutire,
and forbidding a removal from office. The first
prohibition our adversaries readily admit, but the
second, they say, applies as well to the Legislature
as to the Executive. I should agree to this, too,
were there any necessity for it, but it is not pre-
tended by us that we have the right to remove
from office any officer whatsoever — not only a
judge, but even a revenue officer; there would,
therefore, be no necessity for imposing a restric-
tion upon Congress in relation to a judge any
more than in relation to an officer concerned in
the collection of the revenue. They are each ap-
pointed by the President and Senate, but the Ex-
ecutive officer holds his place at the will of the
President, the jud^e holds his office darins good
behaviour, and neither subject to removal l)y the
Legislature. The term good behaviour is said to
secure to the judge an estate for life in his office,
determinable only upon impeachment for, and
conviction of bribery, corruption, and other high
crimes and misdemeanors, and that inasmuch as
his good conduct is the tenure by which he holds
his office, he cannot be deprived of it so long as
he demeans himself well. As our system of juris-
prudence has been borrowed from Great Britain,
It may not be amiss to refer to the history of that
nation, in order to discover whether they have
given the same construction to these words as is
now contended for by gentlemen on the other side
of the House. It is certain that, in England, it
has, in some cases, been consideied, that the words
good behaviour, in a commission, confer the office
for the life of the officer, provided be shall so long
demean himself well; but I do not know that a
question has ever arisen there, how far the power
creating the office could afterwards abolish it. It
appears to me to follow so necessarily, that for
myself I should never have started a doubt; it is
however most clear, that these words have not,
even in England, been thought to give the judges
an estate for life in their offices. Antecedent to
the accession of William the Third, all judges were
appointed by, and held their commissions during
the pleasure of the King; but, in the reign of that
monarch, it was declared by the Act of Settlement,
that judges after that time should hold their com-
missions durinff good behaviour, removable upon
the address of both Houses of Parliament. The
tenure of office then became precisely similar to
that of our judges at this time, with the single ex-
ception, that it was in the power of Parliament to
remove them ; they were to hold their offices so
long as they demeaned themselves well, and could
secure the good will of the Legislature. Yet this
was not considered there as an estate for liff.
because it is well known that their appointments
became vacant upon the demise of the CrowiL
and their commissions were no iong'er in foree.
It was the settled opinion and UDiform practice
for sixty years. The jud^s never Tcntured ta
maintain a contrary doctrme, bat acquiesced m
it from the reign of William the Third to that of
George the Third. Itwasnot only the practice, bit
it was recognised by the acts or several succeed-
ing Parliaments; for, in the first year of the reife
of Clueen Anne, an act of Parliament passed. 6t-
daring that the judges should hold their commis-
sions six months after the demise of the Crows.
Here it was decidedly the opinion of Parliameat,
that the judge did not hold his office during ii^
because it was admitted that the comnaissioa was
properly annulled bv the demise of the Crows,
and they declared that, in future, it shodd coih
tinue in force for six months after^ This practice
of vacating the commissions of the judges, six
months after the demise of the Crown, was regu-
larly pursued upon the death of Ciueen Anne, d
George the First, and George the Second, withosr
any doubt being entertained as to its propriety. It
the reign of George theThird, Parliament again ac-
knowledged it to have been the settled and estak-
lished law of the realm, by enacting a particolar
statute to change it, in which they declared, that
the commissions of the judges should not deter-
mine upon the demise of the Crown, and so the
law stands at this day. I have given this as ai
example to show that, in England, the words good
behaviour did not invest the judges with an es-
tate for life in their offices; but that, notwithstand-
ing these words in their commissions, in eonfora-
ity to an act of Parliament, they were still leli
subject to the established principle of the comoige
law, that the commissions of all offices in the ap-
pointment of the Crown were vacated by the dean
of the reiorning monarch. It is a maxim uoirer-
sallv admitted, that the common law may be re-
pealed by statute^ but it was not considered in
England that a fundamental principle cotdd be
repealed in an incidental manner, by declaring
that the commissions of the judges should coa-
tinue during good behaviour. It is a fundamen-
tal principle in every Gk)vemment, that the power
having the right to enact has likewise the ri^bt 0
repeal a law. It is the existence of this Uiada-
mental principle in our Grovernment which gires
to Congress the right of re|iealing their ow^n lavs;
for the power to repeal is no where expressly
vested in them by the Constitution, and it woul^
be absurd to suppose^ that when a law is once
enacted, it is to continue forever in. force. The
Act of Settlement is as much a part of the Consti-
tution of England as the third article is a part of
our Constitution ; yet the provision in this act
which declares that the judges shall hold their
commissions during good behaviour, was never
considered as destroying that fundamental princi-
ple of their Government by which all commis-
sions were vacated upon the demise of the Crowa.
So in our own country, although the third article
of the Constitution declares, that the judges of
821
HISTORY OF CONGRESS.
822
February, 1802.
Judiciary System.
H. ofR.
the inferior courts shall hold their commissioDs
during good behaviour, yet it cannot operate to
destrojr the fundamental principle of our Govern-
meat, by which Congress is authorized to repeal
all laws which they have enacted, and to abolish
all offices they have created. An express statu-
tory provision was deemed necessary in England
to prevent the commissions of the judges from
being vacated by the demise of the Crown, and
was accordingly made in the reign of Greorge
in. An express Constitutional provision must be
made before Congress can be divested of the right
of repeal>og a hw which they have enacted.
Until our Constitution is amended to this effect,
which I hope never to see done, the right to re-
peal a law constituting an inferior court, can no
more be* denied than the right to repeal a law
establishing a post road, laying a tax, or jraising
an army.
Having shown that, in England, the tenure by
which the judge held his office wais not, of itself,
deemed sufficient to destroy a great and leading
principle of their Gk)vernment, I will now endea-
vor to prove that the tenure of office cannot and
Dught not to produce this effect in the United
States. I will not dispute with the gentleman
irom Connecticut (Mr. Griswold) about the
meaning of the word hold, because it equally an-
swers my purpose to say, that the judge shall pos-
sess his office during ^ood behaviour. I cannot,
lowever, agree with him, that the judge holds his
office of the people, for'^he is not appointed by
;hem; besides, if he is to bold his office during
^ood behaviour, of the people, a doubt perhaps
night arise, whether, under these circumstances,
iven a change of Uie Constitution could affect
lim. It is true he is not called the President's
ludge; neither is a Minister to a foreign Court
:alled the President's Ambassador, but the Am-
bassador of the United States ; yet it will not be
contended, that the Ambassador nolds his place of
;he people.
It is necessary to examine whether the tenure
)y which any officer of the United States holds,
)r. if gentlemen please, possesses, his office, can
lestroy the inherent right of Congress to repeal
he law by which the office is created. In order
o do this, it may be proper to refer to an early
period of the political history of the present Gov-
ernment. In the year 1789, soon after the Gov-
^nment was organized, when Congress were
ibout to establish the office of Secretary of For-
!ign Affairs, since called Secretary of State, a
luestion arose, whether the officer was to be re-
moved at pleasure by the President ; whether by
;he President and Senate who appointed him, or
d'hether he was to hold his place during good
behaviour.
These different constructions of the Constitu-
:ion were contended for by three different classes
)f gentlemen, who severally urged, that each was
:he true meaning of the Constitution. A gen-
:leman of distinguished talents, at that time rep-
•eseniing South Carolina, (Mr. William Smith,)
idvocated with very great ability the opinion, that
;he Constitution had pointed out but one method
of removing an officer, (by impeachment,) and
therefore that he could not be removed so long
as he demeaned himself well. Finally^ however,
a majority agreed, that the true meanmg of the
Constitution was, that the power of removal was
of an Executive nature, and therefore belonged
solely to the President. This construction was
adopted, and has ever since been sanctioned by
uniform practice. But I will suppose that Mr.
Smith's construction had been agreed to, and it
must be allowed to be extremely plausible, would
Congress thereby have been prevented from re-
pealing a law by which an Executive officer had
been created, because the officer could only be
removed by impeachment? I presume no gentle-
man will say so. But let us take the case as it
now stands. ' Your supervisors, who superintend
the collection of your excise duties, are appointed
by the President and Senate, and nold their offi-
ces under the Constitution, not during good be-
haviour, but during the will and pleasure of the
President. The tenure by which he holds his
office is completely beyond the power of the Le-
gislature, and they cannot remove him. So long
as he can secure the good will of the President,
he is to hold his office against the whole world.
It is as sacred, in relation to the authority of Con-
gress, as that of a judge. They both nold their
offices independent of the Legislature; the one
during good behaviour, the other during the pleas-
ure of the President. It is not in our power to
remove an excise officer, so long as his omce con-
tinues, any more than to remove a judge, so long
as his office continues. The authority vested in us
is entirely Legislative, and has nothing to do with
the Executive power of removal. Yet is there
any man on earth can say that we have not a
Constitutional right to repeal the laws laying ex-
cise duties, by which the office of supervisor is
created ? And can any one say that we can re-
move the supervisor m any other manner than
by repealing the law 1 We do not contend for
the ri^ht to remove the judge any more than for
the right to remove the supervisor, neither of
which we can do, each holding his office inde-
pendent of us ; but we all^e that the tenure by
which either holds his office cannot prohibit us
from repealing a law bv which the omce is crea-
ted. It is the tenure of office which is now urged
against the repealing power of Congress. This
tenure is completely independent orLegislative
will, and therefore we are told we cannot pass a
law to affect it. I have, however, shown that the
tenure by which the supervisor holds his office is
as completely independent of Legislative will, as
that by which a jucfge holds his omce ; yet no man
will be hardy enough to dispute the Constitution-
al right of Congress to repeal the excise laws,
and thereby to dismiss all the persons holding of-
fices under them. I am aware that I may be told
that the President, in giving his sanction to the
law, at the same time impliedly signifies his con-
sent to the removal of the officer. But permit me
to suppose that the President refuses his signature
to the law, and tells you that these officers hold
their commissions independent of you, and there-
823
HISTORY OF CONGRESS.
824
H. opR.
Judiciary System,
Febrdart. IS*^.
fore you have no right to dismiss them ; that the
Constitution authorizes them to hold their places
during his will and pleasure, and that it is his will
and pleasure they shall continue in office. Here
the tenure is as strong and inviolahle hy the Legis-
lative power as the tenure of the judge ; yet Con-
stress may, notwithstanding, afterwards pass the
law by the concurrence of two-thirds, and destroy
this sacred tenure of office.
If; then, the tenure of office in the one case can-
not destroy the right to repeal, why shall it destroy
it in the other? Both tenures are equally inde-
pendent of Legislative control — the one securing
an estate defeasible by misbehaviour, the other
securing an estate defeasible by the will of the Pres-
ident ; but neither dependent on Congress for con-
tinuance in office, so long as the office itself ex-
ists. Gentlemen say we cannot do that by indi,-
rect means which we cannot do directly ; that is,
that we cannot remove a judge by repealing this
law, inasmuch as we cannot remove him by direct
means ; but I have proved beyond the possibility
of doubt that we may indirectly remove an ex-
cise officer by repealing the law under which he
was appointed, although we have no authority to
remove him in any direct manner. If the prin-
ciple laid down by gentlemen is not true in the
one case, it cannot be true in the other.
For my own part, Mr. Chairman, I think no
doubt can be entertained that the power of re-
pealing, as well as of enacting laws, is inherent
in every Legislature. The Legislative authority
would be incomplete without it. If you deny the
existence of this power, you suppose a perfection
in man which he can never attain. You shut the
door against a retraction of error by refusing him
the benefit of reflection and experience. You
deny to the great body of the people all the essen-
tial advantages for which they entered into soci-
ety. This House is composed of members com-
ing from every quarter ot the Union, supposed to
bring with them the feelings and to oe acquaint-
ed with the interests of their constituents. If the
feelings and the interests of the nation require
that new laws should be enacted, that existing
laws should be modified, or that useless and unne-
cessary laws should be repealed, they have re-
served this power to themselves by declaring that
it should be exercised by persons freely chosen
for a limited period to represent them in the Na-
tional Legislature. On what ground is it denied
to them in the present instance? By what au-
thority are the judges to be raised above the law
and above the Constitution? Where is the char-
ter which places the sovereignty of this country
in their hands ? Give them the powers and the
independence now contended for, and they will
require nothing more; for your Government be-
comes a despotism, and they become your rulers.
They are to decide upon the lives, the liberties,
and the property of your citizens ; they have an
absolute veto upon your laws by declaring them
null and void at pleasure; they are to introduce
at will the laws of a foreign country, differing es-
sentially with us upon the great principles of
government; and after being clothed with this
arbitrary power, they are beyond the contro. «■
the nation, as they are not to be affected br aa:
laws which the people by their represeitaL-r^
can pass. If all this be true; if this doctrine >
established in the extent which is now coQfeD>.
for, the Constitution is not worth the time we Li-
spending upon it. It is, as it has been called t?
its enemies, mere parchment. For these jud^
thus rendered omnipotent, may overleap the Cl:-
stitution and trample on your la\irs; they mr
laugh the Legislature to scorn, and set the naricfl
at defiance.
To me it is a matter of indifference by viu
name you call them; I care not ^whether ][ >
kings or judges. Arm them with power, and tb-
danger is the same. For myself I hav^noibe.-
tation in declaring that I would rather htsahJKi
to the absolute sway of one tyrant, thaotst^ar
of thirty; as I would prefer the mild despccjoiof
China to the hated aristocracy of Venice, irktte
the vilest wretch was encouraged as a secret in-
former, and the lion's mouth was erer gapiogf::
accusation. •
I must now be permitted to turn niyatteod:i
to various authorities which gentlemen hare ia-
troduced, and which, I presume, they ihoadii
would fully establish the position they haTeiaken.
I deem it peculiarly fortunate for us, sir. that
although volumes have been ransacked, thocfh
heaps of newspapers and pamphlets have beeo re-
sorted to, and the iournal of the ConTention isse^'
has been produced as authority, yet the whole f6^
nish not a single argument — not one solitary idei-
to prove the unconstitutionality of the measurt
now under consideration. They have beeo read
it is true, with much apparent triumph, and hin
afforded gentlemen an ample opportunity to (b-
play their eloquence and ingenuity, but cenaifily
have no bearing on the question.
The first of these authorities is of very hifi
nature, not only because it is the decision ct^^i
court of judicature, but because that decision ms
made by men whose talents are acknowledged, aa^
whose characters command universal respecL Lei
the case, however, be fairly stated, and it will ^
found to bear no analogy to the subject now be-
fore us. I shall refer to the same pamphlet whiek
has been a noted on the other side of the Hosse.
and therefore there can be no difference betweea
us as to facts. We find in pa^ tweniy-foarth
that by the Constitution of Virginia, the two Bosses
of Assembly were to appoint, by joint balJoi
judges of the supreme court of app^ds and Etft-
erafcourt; judges in chancery, and judges of ad-
miralty, who were to be commissioned by the Gar-
ernor, and to continue in office during good be
haviour. In the twenty-fifth page it is said that
by the first judicial system of Virginia, one gvae-
ral court was constituted with common law jih
risdiction ; one court of chancery, and one coo.'t
of admiralty ; and by the law the judges of these
three courts were declared to constitute the couit
of appeals, but as such had no commissions gires
to them. In 1787, the Legislature passed a \xn
erecting a system of circuit courts, and declared
that the above named judges should execute vu
825
HISTORY OF CONGRESS.
826
February. 1802.
Judiciary System.
H. OF R.
duties of circuit judges, in addition to their duties
as judges of the other courts. This law the
judges refused to execute as uncoDstitutional, be-
cause they said the Legislature had no right to
impose new duties on them without giving them
additional salary.
This is a plain and simple statement of the case,
with the decision of the court, and I am astonish-
ed that any man should attempt to apply it to that
now under consideration. We do not propose to
add new duties to those now performed by the cir-
cuit judges ; but we propose to take from them
all duties whatsoever, so that the two cases are
not at all analogous. If, indeed, the opinion be a
sound one, (and I certainly shall not undertake to
question it,) it clearly proves that the law of last
session was unconstitutional, because that law im-
posed new and more arduous duties on the judges
of the district courts of Tennessee, Kentucky,
and Maryland. It might likewise prove the bauK-
rupt law to be unconstitutional, because it im-
posed a great variety of additional duties on the
district judges throughout the United States. The
bill now under consideration does not add new
duties to those of the judges of the Supreme Court
and the judges of the district courts, but replaces
both in the situation in which they were prior to
the passage of the law which we are now about
to repeal. I must say, therefore, that this author-
ity fails altogether.
Another decision of the same judges has like-
wise been adduced to prove the unconstitutional-
ity of the present bill, which is equally inapplica-
ble with the other ; but perhaps it may be found
in the end ta apply more forcibly to the Judiciary
system of last session. The same author from
whom our opponents have derived their informa-
tion, tells us (in page 30) that after the judges
had refused to do the duties of circuit judges as
just mentioned, '^ the Legislature, apparently ac-
quiescing in their decision," new modeliea the
law, and established a separate court of appeals,
the judges of which were to be elected by the
joint ballot of the two branches, agreeably to the
Constitution. The former judges, who had before
jointly performed the duty of judges of the court of
appeals underalaw of the State, were relieved from
the further discfaarffe of it, and six of them were
elected judges of the new court of appeals now
created separately, others being appointed in their
places as judges of the court of cnancery, general
court and court of admiralty. This law they
likewise declared to be unconstitutional, not be-
cause a court which had been created by law was
abolished, (for the court of appeals was expressly
established by the Constitution,) but because, in
their own language, it was " an amotion from of-
iSce of the whole bench of judges of appeals, and
the appointment of new judges to the same court."
Now, sir, I aver that the very proceeding which
the judges of Virginia declared to be unconstitu-
tional was the effect of the Judiciary bill which it
is now proposed to repeal. For, by the former
system, the judges of the Supreme and district
courts of the United States were made judges of
the circuit courts, and continued to hold them
until they were "amoved from the office" of
judges of the circuit courts by the law of last ses-
sion. So that this decision cannot apply to the
bill now on the table, but is directed with great
force to that passed by our adversaries early last
year, and which it is our intention to repeal.
I have been thus concise in the examination of
these two opinions^ because it was only necessary
to show the points in dispute, to convince the most
prejudiced mind that they could have no bearing
on the present question. They may, indeed, serve
to show that the judges thought themselves au-
thorized to declare an act of the Legislature un-
constitutional ', but this is by no means the ques-
tion before us, although it has been dragged into
the discussion.
While I am t)n this part of the subject, I will
endeavor to prove that the last Congress set us an
example of abolishing courts and vacating the
places of judges, although gentlemen who were
then in the majority now contend that a similar
proceeding on our part will be unconstitutional.
The twenty-fourth section of the Judiciary act of
last session declares ^^ that the district courts of the
United States in and for the districts of Tennessee
and Kentucky shall be, and they hereby are. abol-
ished ;" and by the same section it was provided
that the jurisdiction of those courts should be af-
terwards vested in, and exercised by, the circuit
courts of Tennessee and Kentucky respectively.
The question necessarily arising is, what was the
effect of abolishing these courts? I have no hesi-
tation in saying that, in my opinion, the offices of
the judges were likewise abolishea. It is true,
that by the seventh section it is declared that the
circuit court of the sixth circuit shall be composed
of a circut jud^e, and of the judges of the dis-
trict courts of Tennessee and fCentucky, thereby
retaining them in office, and, as gentlemen say,
not affecting their independence. This point I
shall remark on presently, but will now confine
my observations to that part of the law which
ahiolishes the district courts.
The words judge and court are correlative terms,
and by the Constitution are inseparably connect-
ed with each other ; for in no part of the Consti-
tution do we find any other judges spoken of than
judges of the Supreme and inferior courts. A
court may be composed of one or more judges ; as
the district court is composed of one, and the Su-
preme Court of six judges. It is the legal name
of one man, or of a body of men in their collect-
ive capacity, vested with certain powers, authori-
ty, and jurisdiction, to be exercised by them agree-
ably to the established laws of the country ; as the
word Conffreaa was, under the Confederacy, the
political name of a body of men in their collect-
ive powers of a certain extent. When you abol-
ish the court, you take from the persons compos-
ing the court all the powers vested in them as a
court ; as when the old Congress was abolished,
they were divested of all powers vested in them
as a Congress. When the district court of Ken-
tucky was abolished, the gentleman who was then
judge, was no longer judge of the district court,
for there was no such court in existence. I woula
827
HISTORY OF CONGRESS.
82!
H. OF R.
Judiciary System,
Febrcart, 1^.
ask, then, of what be was the jad^e ? For the
idea of a judse without a court is an absurdity.
I trust I shall not be told that he was judge of
the district of Kentucky, for the Constitution
knows of no judge either of the Supreme or of
an inferior court ; and the judge of a district, with-
out a court, is no where recognised by the Consti-
tution. I think, therefore, I am warranted in say-
ing that when the district courts of Tennessee
and Kentucky were abolished, the offices of judges
of these courts were likewise abolished. This is
precisely the effect now contemplated. The bill
upon the table, if enacted into a law, will abolish
the circuit courts which were created last year,
and will at the same tim« abolish the offices of the
judges of these courts.
But we are told that, by abolisMng the district
courts of Tennessee and Kentucky, the independ-
ence of the judges of these courts was not affect-
ed, because they were by the same law appointed
to hold the circuit court of the sixth circuit. This
16 the part of the law which the gentleman from
-Virginia said had violated the Constitution, and
this opinion I do, without hesitation, concur in.
By the twenty-seventh section of the act passed
last session, the circuit courts then in existence
were entirely abolished, and by the seventh sec-
tion, new circuit courts were created. The Con-
stitution has given to the President and Senate
the power of appointing all judges both of the
Supreme and inferior courts ; the circuit court of
the sixth circuit is an inferior court, and by the
Constitution the judges ought to have been ap-
pointed by the President and Senate. Yet in the
face and in violation of the Constitution, the Le-
gislature of the last session did appoint the judges
of the district courts of Tennessee and Kentuc-
ky to hold the courts of the sixth circuit, which
courts were created anew by that law, and ought
to have had their judges appjointed by the Presi-
dent and Senate. This, sir, was the measure
which the gentleman from Virginia said had in-
flicted a ghastly wound on the Constitution, and
not that part of the law. as has been contended,
by which the two district cou^rts were abolished.
The gentleman from Connecticut, (Mr. Gris-
WOLD,) m order to show that we are not author-
ized to abolish these courts, and thereby to vacate
the commissions of the judges, has referred us to
the draught of a constitution made for the State
of Virginia, in the year 1783, by the present Presi-
dent of the United States. It must be remember-
ed, sir, that this is nothing more than the opinion
of an individual on a subject not growing out of
the Constitution of the United States, which was
not then formed, and, I believe, not even dreampt
of; but, as I feel a high respect for the opinions of
this gentleman on all subjects, I shall beg leave to
examine that alluded toby the member from Con-
necticut. And, to me, it is a matter of some grati-
fication that the man who has been so long and
so unjustly the object of federal calumny, snould
at last receive even this slight retribution from
federal authority. In this reference, however, the
honorable member has been peculiarly unfortu-
nate, for it will be found that this draught of a
constitution shows the opinion ofMr. Jeffersobi.
have been, at that day, precisely the opiDioQv&>{i
we now entertain on the subject before us Hi^
pily for the nation, it is not the only iustaoce n
which the sentiments of the Chief Magibtraiesrc
in direct opposition to those of the gentlemaDfro:
Connecticut, and his friends. If the geodeisu
had turned to the book itsdf. which I now \m
in my hand, instead of relying on the scnpc^
anonymous scribblers, who, for aught Ibov.n
interested in giving a false coloring, hewoaliJKt
have been imposed on. In the third article of Uf
plan of a constitution proposed by Mr. Mtim
It is declared that ^^ tke Judiciary powers sbsli x
' exercised by the county courts, aad s«c^ sfm
^ inferior courts as the Legislature shall tM
* proper to continue or erect ; by three ssperM
^ courts, to wit : a court of admiralty, i fan]
* court of common law, and a high court afte
' eery ; and by one supreme court of v^i-"
This language is very suniiar to that of omCoi-
stitution, wJuch says that " the Judiciary pofc
^ shall be vested in one Supreme Court, a&d^K:
^ inferior courts as CoBj^ress may. from line ^
' time, ordain and estaUish." Now, sir. the pR^
cise point of difference between us is, whetkoc
was at that time the idea of tbe President thai'^^
judges of these inferior courts who, I will s^«
you, were likewise to hold their commissioasi^r
ing good behaviour, could be removed from o&t
by abolishing their respective courts. The jis:
already alluded to, proceeds to declare tbinit
judges of the court of chancery, of the g^om.
court, and court of admiralt3r, shall holdtheirrofr
missions during good behariour ; and afiervv^
in page 371, provides that ^^ the justices or jo^
^ or tbe inferior courts, already erected or beroi^
^ ter to be erected, sball be appointed by the G&^-
^ ernor, on advice of the Council of State. is(
' shall hold their offices during good behariour *
^ the existence of their court." This, iheiLdflirff
shows it to have been the idea of the wriiefi^i
the inferior courts, which the Legblaiwe ^^
authorized to erect, as they might think ^»?«^
might afterwards be reduced by the Legisittta^
and the judges displaced, although they were l'
hold their commissions duriofr good bebavioe
As I before said, this is nothuu? more thac c
opinion on a subject somewhat similar to that be-
fore us, and is not directly in point ; hot as ^
member from Connecticut thought proper too^
it into his aid, I think, when it is found Vi^
against him, it may very fairly be thrown iotoi^t
opposite scale. *
The gentleman has likewise referred to u^
journals of the Convention by whom theCoB^^
tution was framed, and has said a proposition v^
there made, that the judges should be remof^;
upon the address of the Legislature, as io Eofitf^
As this was not inserted in the ConsiittttioB. -
infers that we have not the power. Is it d^
sary, sir, again to repeat, that this is a power viu^
we do not contend for ? But does it therefore 'i-
low that we have not the power to repeal a ia*
There has been no proposition that we should a*
ercise such a power. We hare no compi>iA'-'
829
HISTORY OF CONGRESS.
830
February, 1802.
Judiciary System.
H. or R.
against the judges. They may ail be, as I know
some of them are, men of honor and integrity.
We have no desire to remove them and put others
in their places, but we wish to abolish a system
which, in our consciences, we believe to be use-
less and unnecessary, and which is supported at
a heavy expense, that the nation is neulier able
nor willing to pay.
But, sir, I believe it has not heretofore been
supposed, that a refusal by the Convention to grant
a power expressly, prevented Congress from an
exercise of that power. When it was formerly
groposed to grant a charter of incorporation to the
tank of the United States, it was stated by a mem-
ber of this House, who had likewbe been a mem-
ber of the Convention, (Mr. Madison,) that an
attempt had been made in the Convention to invest
Congress with thi5 power, and that the proposition
was rejected ', yet, this argument had no effect
whatever, for Congress did proceed to incorporate
the Bank, and the incorporation stands at this day.
If, therefore, the present quotation from the jour-
nal was in point, we might be excused for suffer-
ing it to have no weight with us, as we should at
least be justified by the precedent of federal au-
thority. But it bears no analogy to the present
question, and ought to have no influence in its
iecision.
The extracts which have been read from Judge
Tucker's lecture, from the debates of the Virginia
sonvention, and from the writings of " Publius,'*
ire equally irrelevant. They contain some ^en-
3ral ideas on the independence of the Judiciary,
without any definition of that independence which
ran possibly affect the bill on the table. The in-
iependence of the three branches of Government
las, in mv opinion, been much talked of without
;>eiD^ fairly defined, or correctly understood. The
powers of our Government are distributed under
:hree different heads, and are committed to the
iiiTerent departments. The Legislative power ex-
lends to the enacting, revising, amending, or re-
pealing all laws, as the various interests of the
lation may require. The Judiciary power con-
sists in an authority to apply those laws to the va-
■ious controversies which may arise between man
ind man, or between the Government and its cit-
zens. and to pronounce sentence agreeably to the
iictates of their judgment and consciences. After
be Judicial decree, it then becomes the business
>f the Executive to carry it into effect according
o its true intent, and conformably to the laws of
he land. In all Governments where they have
.he semblance of freedom; the great dendercUum
las been, to keep these three branches so entirely
;eparate and distinct as that the powers of neither
should be exercised by the other; or, in other words,
;bat the Legislative powers should never be exer-
cised by the Executive or Judiciary, that the Ju-
iicial powers should not be exercised by the Le-
pslative or Executive, and that the Executive
^o'vrers should not be exercised by the Legislature
)r Judiciary. But there is no Government on the
ace of the earth, whose history I am acquainted
^ith, in which a total and entire independence
las been established. In England the judiciary
hold their offices at the will of Parliament. In
the States of Vermont, Massachusetts, Connecti-
cut. Rhode Island, New Jersey, Pennsylvania,
Delaware, Maryland, and Georgia, the judges are
either elected by the Legislature for a limited time,
or are subject to removal by them ; in New York,
some of the I'ud ges are in the same situation ; in
New Hampshire, the Leo^islatuxe are authorized
to limit the duration of their commissions, and, I
believe, are in the habit of doing so ; and in Ma-
ryland, Virginia, North Carolina, South Carolina,
and Georgia, the Executive is absolutely depend-
ent on the Legislature for his continuance in of-
fice, being annually or biennially elected. In
Tennessee, and in most, perhaps all of the others,
both the Judiciarv and the Executive are depend-
ent on the Legislature for the amount and pay-
ment of their salaries. Yet, sir, in all these States,
where we find no such idea of independence as is
now contended for, there has been no confusion,
no disorder. The people are happy and contented,
and I venture to affirm, are more free than the in-
habitants of any other part of the globe. They are
happv, because none can oppress them ; they are
free, because they have a control over their public
agents. But if the public agents of the Federal
Government are to be set above the nation, and
are to be invested with the arbitrary and uncoo-
troLled powers which some gentlemen insist on,
who can say where they will stop, or what bounds
shall be prescribed to them ? Man is fond of pow-
er, is continually grasping after it, and is never
satisfied. He is not therefore, to be trusted. Un-
limited confidence is the bane of a free Govern-
ment. Those who would retain their freedom,
must likewise retain power over agents, or they
will be driven to destruction. I have been taught
to believe, that the power is never so safe as in the
hands of those for whose benefit it is to be em-
ployed. 1 consider it in their bands when it is del-
egated to representatives freely chosen by them-
selves for a short period, and immediately respon-
sible to them for us use. " Power in the people
has been well compared to light in the sun; na-
tive, origmal, inherent, and not to be controlled
by human means." But power, when once sur-
rendered to independent rulers, instantly becomes
a despot, and arms itself with whips and chains.
While the people retain it in their own hands, it
exalts the character of a nation, and is at onoe
their pride and their security ; if thejr surrender
it to others, it becomes restless and active, until it
debases the human character, and enslaves the
human mind ; it is never satisfied until it finally
tramples upon all human rights. It is against
this surrender of power that I contend; it is this
vital principle of the Constitution that I never
will yield. The people are the fountain of all
power; they are the source from which every
branch of this Government springs^and never shall
any act of mine place one branch beyond their
control.
But. Mr. Chairman, I will conclude. I have
already said more than I could have wished, but
the subject demanded it. The question has be-
come important, and the Constitution loudly calls
831
HISTORY OF CONGRESS.
9:
H. opR.
Judiciary System,
February,!^
for its decision. I entreat gentlemen, however, to
exaniine calmly this new doctrine of the indepen-
dence of judges, before they establish the princi-
ple that the tenure of office is to prevent the re-
peal of a law, by which the office is created. It
will equally apply to every office under the Gov-
ernment for all are held equally independ^t of
the Legislative will. It is no more in our power
to remove an executive than a judicial officer, and
if we are to be prevented from repealingr a law,
because we have no right to remove an officer, not
only the present expensive Judiciary must con-
tinue, but the army and the navy may be increased
hereafter, and no future Congress will be au thorized
to reduce them; and the odious excise duties are
entailed upon us for ever. This is an extent, I
presume, to which no gentleman is willing to go.
It may indeed secure the judges in their offices,
and anord them the much wished for independ-
ence, but it will sacrifice the independence of the
nation, and render the Constitution of no avail.
It may leave us the name and the shadow of lib-
erty, but the essence and the spirit of representa-
tive government will be totally destroyed.
I therefore cherish the hope, that this Constitu-
tional question will be decided by passing the bill
upon the table, and that a majority of this House
will vote against striking out the first section.
Mr. Dennis. — Mr. Chairman, indisposed as I
have been, since the first commencement of this
discussion, and indisposed as I still am, prudence,
perhaps, would have dictated to me silence on
this occasion ; and sure I am, I should not have
risen at this late hour of the day, but for the ob-
servations of my honorable colleague (Mr. Nich-
olson.) Had I offered my sentiments at an ear-
lier period of this discussion, it would have been
my primary object to have taken an analytical
view of the Constitutional question, to have shown
what the Constitution has said, and to have prov-
en that it means what its language certainly im-
ports, no less a restriction on Lejgislative, than on
Executive power. But this will now be but a
subordinate consideration, and my object will be
rather to pursue certain gentlemen through their
boundless excursions into almost every region of
our political history, than to attempt a methodical
investigation of the subject before us. In th£
course of my observations, I beg my colleague to
be assured, I shall not omit to pay him the homage
of my most profound respect and high considera-
tion ; yet he must excuse me, since he has thought
proper to reiterate the preliminary remarks of his
friend from Vir£^inia (Mr. Giles,) if I should as-
sign to that gentleman the priority in the applica-
tion of my remarks. And nere, Mr. Chairman, I
will not promise, like little David (Mr. Randolph)
to slay the Philistine, (Mr. Giles,) but will en-
deavor to aid my friends in repelling his unpro-
yoked and ungodly attacks on the children of Is-
rael and their illustrious chieftain; that chieftain
who may be emphatically denominated the father
of his country, and who was the President of the
Convention who formed that sacred instrument of
which you are about to make a burnt offering, a
propitiatory sacrifice to appease the vengeance of
party prejudice and political hostility, to & fev
obnoxious individuals. Great geniuses, Mr. Ck-
man, in the political, may be aptly assimilatd:
comets, in the natural world ; they serve rati?
to excite our admiration and wonder and a$toa.<-
ment, than contribute to the order orperfectios:
the general .system. Such a genius is the ^ik-
man from Virginia (Mr. Giles.) That geo^
man we all know has light in abundance, ail n'
the path we have to explore be dark and intria^
he might have taken his lantern and bave^
before us ; we should have been dad to harefi-
lowed him and had the benefit of his illumiDatici
But he has departed from the highway leadicg.:
the place of destination, and, like an igniifntsa
has attempted to lead us through bogs aad id3i^
ses, in order that we might mire or^et [osioaik
way. My friend from Delaware nas, ioRrer.
taken him by the skirts and never letg&isiiis
the evil spirit which haunts and pursati Vim
wherever he flies. The honorable geDtleauoirSu
Virginia commenced his observations by ^jii;
us a retrospective narrative of the rise aod proves
of political parties, their respective views a^^
their different tendencies. And truly, sir. the hi-
tory which he ^ave us was such a oneasliun
long since read m CallenderHs History of the IV
ted States, and his " Prospect Before Usf k.
such a one as I had not expected from the urbs^
accomplished, and very enlightened geotleiDi:
from Virginia. It the more resembles thes !>
tories, because, to the best of my recolleciioD.iii£'t
is in them both an open attack on that iilusu;j»
name which was once dear to us all, aodwbr.
however it may now be sought to be tarnishej:.
foreign convicts and a few gentlemen who sti^:
high in the honors of their country, is. I irasui
sweet in the lips of the great mass of the k^->
can people. This great name is now to be p^r.
down, together with all those federal ranipra
which have originated under its auspice^ >a^
been sheltered in its shade. But whence ihis^^^-
tility to this name ? That great man, (WiSBWs-
TON,) whose strong penetrating intellect and «oad
discriminating judgment seldom led himt^v^T'
in a letter to a citizen of Maryland, happeof^ «
express a sentiment, that the democratic party a
this country had been the cause of all theexpes*
incurred in our preparations for resistance w*
French aggressions. And is this the reason w-?
to this moment, with all power in iheirhantlij^
one has been found making one solitary i^^^"
for the erection even of a pedestrian staiae.e-
pressive of a nation's gratitude to a nation's sa^icsi.
to whom there has been assigned by the Cb^
Magistrate of our country, for his rerolutionf?
services, (nothing, sir, for his civil labors) the j^'"
est page in the volume of faithful history? ^^
gentleman from Virginia (Mr. Giles) proceed^
to stale, that there exists in this countrjr a cer*^
party whose object it has ever been, 10 mo^^
every opportunity of extending Executive pairf^
age, and of nerving the Executive arm, ftf.'''
purpose of elevating the constituted authonc^
above responsibility to the public will; ^^^^^'\
this view, they, with that great man at their hew
833
HISTORY OF CONGRESS.
834
February, 1802.
Judiciary System.
H. OF R.
(Washington,) had reco^ised,asa favorite max-
im, the paradoxical maxim, that a national debt
is a national blessing. My colleague has also ob-
served, that such a party has existed and still does
exist, and has endeavored to enforce the assertion
of the gentleman from Virginia. I wish, sir, these
gentlemen had been a little more particular and
condescended, instead of dealing in general asser-
tions, to have given us the names, the time when
and place where these sentiments have been ex-
pressed. But it is well understood that these gen-
tlemen allude to Mr. Hamilton, the first Secretary
of the Treasury, and the author of the fundioff
system. I thin K it is time these assertions should
be repelled, or supported by better evidence than
mere assertion. In order to see how far these
categorical allegations are supported by the fact,
I mast solicit the indulgence of the Committee
whilst I read to them, from Mr. Hamilton's report
of the fifteenth of January, 1795, a few passages
illustrative of this subject; The report begins
thus:
"The President of the United States, with that pro-
vident concern for the public welfiire which character-
izes all his conduct, was pleased in his speech to the
two Hoases of Congress, at the opening of the present
seasion, to invite their attention to the adoption of a
definitive plan for the redemption of the public debt,
and to the consummation of whatsoever may remain
mifinished of our system of public credit, in order to
place that credit on grounds which cannot be dis-
turbed, and to prevent that progressive accumulation of
debt which must ultimately endanger all government."
In page fifty-six of the same report, after reca-
pitulating the different acts of the Government
relative to the public debt, and the revenues pro-
vided to meet it, he ^oes on strongly to urge the
propriety and necessity of establishing a sinking
land for its speedy extinguishment. Here follows
his remarks on that proposition :
" There is no sentiment which can better deserve the
serious attention of Congress than the one expressed
in the Speech of the President, which indicates the
danger to every Government firom the progressive accu-
mulation of debt ; a tendency to it is perhaps the natu-
ral disease of all Governments ; and it is not easy to
conceive anything more likely to lead to great and con-
vulsive revolutions of empire. On the one hand, the
exigencies of a nation creating new causes of expendt-
tore, as well from its own as ^om the ambition, rapa-
city, injustice, intemperance, knd folly of other nations,
proceed in unceasing and rapid succession. On the
other hand, there is a general propensity in those who
administer the afl&irs^f Government, founded in the
constitution of man, to shift off the burden from the
present to a future day ; a propensity which may be
expected to exist in proportion as the form of the State
is popular. To extinguish a debt which exists, and to
avoid contracting more, are ideas almost always favored
by public feeling and opinion ; but to pay taxes for the
one or the other purpose, which are the only means of
avoiding the evils, is always more or less unpopular.
These contradictions are in human nature, and the lot
of a country is enviable indeed, in which there were
not always men ready to turn them to the account of
their own popularity, or to some other sinister account.
Hence it is no uncommon spectacle to see the same
7th Con —27
men clamoring for occasions of expense, when they
happen to be in unison with the present temper of the
community, well or ill directed, declaiming against a
public debt, and for the redemption of it as an abstract
thesis, yet vehement against every plan of taxation
which is proposed to discharge old debts, or to avoid
new, by defraying the expenses of exigencies as they
emerge. These unhandsome arts throw artificial em-
barrassments in the way of the administrators of Gov-
ernment ; and co-operating with the desire which they
themselves are too apt to feel to conciliate public favor,
serve to promote the accumulation of debt, by leaving
that which at any time exists without adequate provis-
ion for its reimbursement, and by preventing from lay>
ing with energy now taxes, where new occasions of
expense occur. The consequence is, that the publie
debt swells until its magnitude becomes enormous, and
the burdens of the people increase until their weight
becomes intolerable. Of such a state of things, great
disorders in the whole political economy, conviilsions,
and revolutions of empire, are natural offsprings."
How far this report, when it speaks of a descrip-
tion of characters in all countries, whose business
it is to indulge a constant clamor about the exist-
ence of a public debt, and who are equally noisy
whenever a tax is proposed to reduce it, has des-
cribed the gentleman from Virginia (Mr. Giles)
and some of his adherents, I shall leave it to this
Committee and the world to decide; but I am sure
that his and my colleague's assertions are unsup-
ported by the evidence before us. This man
(General Hamilton) who has been constantly rep-
resented in all the Jacobinical gazettes, and by the
gentleman from Virginia, as wishing to create
and perpetuate a public debt, it appears, was the
first to propose a sinking fund for its extinguish-
ment; in conformity with whose proposition that
fund was established, and we were rapidly pro-
gressing in the extinction of the debt, and m the*
year 1798 had actually extinguished the sum of
93,972,873. Here, sir, our operations were sus-
pended ; everybody knows the cause, and the gen*
tleman from Virginia and my colleague ought to
remember it. French depredations were now at
their height, and whilst on the one hand they
diminished our resources, on the other they created
a necessity for augmenting our expenditures. The
question was no longer now we should best di-
minish our debt, hut how we should save oar ex-
piring commerce,a dilapidated reyenue,and defend
our territory.
But, Mr. Chairman, with all our anxieties for
building up this system of patronage, and for ac-
cumulating the debt to effect it; with all our pre-
dilections for the British Government and subser-
viency to British influence, I believe there is no
man to be found among us, whose solicitudes hare
been so ardent, as to prompt him to propose to
lend, or rather to give, to a ibreign Grovernment,
five millions of dollars. Is the gentleman from
Virginia (Mr. Giles) acquainted with the Gover-
nor of Virginia ? Does he recollect of his being
our Minister Plenipotentiary to the French Re-
public ? Does he remember that whilst there he
proposed to our Government, with no little impor-
tunity, to lend to our sister Republic, who was
engaged in the common cause of republicanism
835
HISTORY OP CONGRESS.
m
H. OP R.
Judiciary System.
FsBaUARYjdS.
five millions of dollars ; not absolutely to be repaid,
but only to be repaid "if possible?" And did he
express the opinion, that the people of the United
States would cheerfully submit to bear the tax to
raise this money, when they knew it was thus to
be employed ?
[Here Mr. Randolph called Mr. Dennis to
order, stating it to be improper to allude to the
official conduct of a man who was not present to
defend himself. Mr. Dennis bein^ permitted to
explain, said he had not approved the latitude in
which some gentlemen had indulged themselves;
but it must be in the recollection of the Committee
that others had far exceeded him in the freedom of
animadversion on absent characters; and that the
gentleman from Virginia (Mr. Randolph) had. in
a particular manner, distine^uished himself by his
attack on a judge of Maryland. The Chairman
decided against Mr. Randolph, and declared Mr.
Dennis in order. Mr. Randolph appealed ; the
Committee confirmed the opinion of the Chair-
man.]
Mr. Dennis proceeded — It is remarkable, Mr.
Chairi^an, the sum which that prentleman pro-
posed to lend or rather grant, to the French Re-
public, was precisely the sum which we have
sorrowed at eight per cent. The only difference
between us is this; that gentleman was willing to
tax the people for the benefit of a foreign Govern-
ment, and the money lent might have been, and
probably would have been, employed in building
vessels to prey upon our commerce. We were of
opinion that it was better to borrow money, even
at eight per cent, than to submit to the loss of our
commerce; and that to employ it in procuring
the necessary implements of war, for the defence
of our territory and the assertion of our invaded
rights, would be making a proper use of our
money. But does the gentleman (Mr. Giles)
suppose that Mr. Monroe, in his willingness to
accumulate our debt, was actuated by the politi-
cal maxim, that a public debt is a public blessing?
And is that gentleman, notwithstanding, still high
in his confidence? If we have ever expended
money, we have erected forts and fortifications,
replenished ^our arsenals and magazines with
arms and military stores, and put into your
hands a valuable navy, which we have employed
to much advantage ourselves ; a part of which the
present Administration is now employing to ad-
vantage, and still will continue, I hope, so to em-
ploy. We have consolidated your resources, pro-
vided for the debt of the old Confederation, and
left in your hands, after all the difficulties we had
to encounter during a war. unexampled on many
accounts in the annals of nations, more than
four millions of national property.
But my colleague (Mr. Nicholson) has said a
great deal about the war-worn soldier having pe-
titioned Congress for a discrimination in his favor,
between the original holders of the national debt
and those in whose hands it was at the time this
Government provided for its payment; and that
when he petitioned, he was scornfully rejected,
sent away to starve, and the speculator is now
roiling in his chariot and fattening on his spoils.
Here, Mr. Chairman, my colleague iswholiyio;!
taken in point of fact, for your war-worn mm^
never did petition for a discrimioation. Theyb:
no interest in a discrimination, for after they bL
sold their claims to these speculators, tboughtbei
had great reason to regret they had doDeiO,tk;;
had no claim and never set up any claim ont^;
Government. The old Confederation was tn-
sidered as bankrupt, unable to pay its debiojasc
not foreseeing the establishment of aGjrerDice:!
better disposed, and more competent to do it. <or
of these soldiers sold their certificates for vhitrr-
er they could get ; and those who sold harecer;;
petitioned us. Perhaps he alludes to certiioeasp
barred by the statute of limitations; ifso,beffiil
do me the justice to say, that I have beeDilvip
in favor of the war-worn soldier, who hasiclajiEL
though it may be barred by the statute. UMl
look around ne will find as many of faispoliiiial
friends, who have opposed the openinf o( tbii
statute, as of his opponents; and it isQOiiuUi
question connected with those differeoi Ticf:
which characterize the difierent parties. Wi2
respect to the proposition for discrimioatioa tr
tween the purcnaser and original holder, h^
be permitted to remark, that the principle is t^
first place is extremely questionable, and in »'
next is impracticable in its execution.
[Here Mr. Dbnnis proceeded toanimadTerc
both these propositions at some leneth.]
He then proceeded — But. Mr. Chairmaa.w^'
do these gentlemen talk so much about payiD'^^
war-worn soldiers; have they ever conseDtedui
tax to raise money for them, or for any oi'f
purpose?
But, sir, we have created an army, accordt--
the gentleman from Virginia (Mr. Giles) notif-
cause the threatening aspect of our affairs req^;
ed it, or our views of impending danger suffjesKi.
the propriety of the measure, butfortheextMJ*
of Executive patronage; and, accord ing to ti^"
timalions of my colleague, (Mr. Nicbou«o5)i^
overawe five hundred thousand freemeB. ^^^
arms in their hands and courage in their btuti
and humble them in dust and asnes. Sinceth^
gentlemen so often allude to the expos* of tti
army, without any allusion to the crisis in vsif-
it was created, I must beg leave to recapiHJ-^
some of the circumstances which existed 3i'>*'
time. France, inspired with Roman ambit-
and setting up pretensions to Roman suprerrf|^
was at this time overstriding Europe, and ira^*
ling under foot every Republic in thatquar^^
the globe. The patriots of ^hese Republic? -^
they had their patriots) complained ofthctp?
ny of their rulers, the heavy taxes which tbej s^
posed, and called on this kind-hearted Repub.^f
aid. and assistance, to remove these oppr^'- ;
All on the alert, she readily obeyed the suinEf
invaded them as a friend, and demoli-ihw *'•
ancient institutions, substituted in their p'*'*
military despotism, and at the point of the »•
net levied contributions in a few monih^. t"^;
amount greater than these people bad ^[^'\[j.
for their own benefit in half a century. T"'^ '^'^
ever, was then styled liberty and republic«s>-^
837
HISTORY OF CONGRESS.
838
February, 1802.
Judiciary System.
H. opR.
By the treaty of Campo Formio, the armies oi
FraDce were liberated from employment in Eu-
rope, and they had nothing to do but look out for
foreign conquests. The importunate demands of
the soldiery for their pay, and the inadequacy of
the means to pay them, rendered it very desirable
to the Directory to get clear, on any terms, of fifty
or a hundred thousand men. Bonaparte had col-
lected at Brest and Toulon forty thousand veter-
ans, with every requisite to transport them where-
ever his enterprising spirit might direct him. His
destination was the subject of conjecture, and we
bad as much reason to apprehend it was for Lou-
isiana, or some part of the United States, from the
irritation which they had discovered towards us,
as to suppose it was for the invasion of Es^ypt,
whose barbarian regions held out much less m-
ducements, and who had not provoked their re-
sentment. In this situation we created a small
military force, not to supersede the use of the mi-
litia, but who might be in readiness to meet the
first onset of the invader, infuse into them a spirit
of military discipline, stand in front of the battle,
and cover a retreat, if a retreat should be necessary.
This was my motive in raisins; this army, and I
believe it to have been that of all those who united
in the measure. Nor do I know, but for Nelson's
victory and Suwarrow's campaigns, which we
had not the powers of prophecy to foretell, these
gentlemen would now be constrained to acknowl-
edge the wisdom of the measure, and to regret
that it was not further extended, instead of de-
nouncing us as the enemies of the liberties of our
country and its republican institutions.
Agam, sir, we are told we created a navjr ; not
because the French Republic, after plundering us
under one pretext or another, for five years to-
gether, at length issued an arret which author-
ized an indiscriminate seizure of your merchant-
men, and anaounted to an universal proscription
of your commerce. Not because her gun-boats
were found in your own jurisdiction and limits,
searching your most valuable shipping in your
very ports and harbors ; but fur tne purpose of
strengthening the arm of the Executive, and in-
troducing principles of the British monarchy.
Those who are conversant with the history of
that period, must remember that the only ques-
tion to be decided when this navy was created,
was, whether we should abandon the ocean, and
basd^ surrender our unquestionable rights, or de-
termine to defend them with all our energies.
Whether we should abandon a commerce little
inferior to that of any nation in the world ; give
up seven or eight millions of revenue; nine hun-
dred and twenty thousand tons of shipping; sixty
thousand seamen ; and leave to your merchants
the forlorn hope of deriving their subsistence from
the plough, the axe, or hoe, and of being reduced
to beggary and starvation ; or whether, animated
with the spirit of freemen, we would determine
to protect them against the unprovoked aggres-
sions, even of this mighty Republic. And it is
well known, that the party opposed to us were
disposed to consider the mercantile part of the
community as so many outlaws, unworthy of our
protection. The gentleman from Virginia (Mr.
Giles) has now discovered the importance of
your merchants, and thinks there ought to be a
strong sympathy between them and the Govern-
ment; for they collect your revenues, and may
greatly defraud you, unless you conciliate them
by a reasonable attention to their interest. A
friend in need, sir, is a friend indeed; and the
sympathies of this crenileman and others, ought
to have had an ample reason for their exercise on
the occasion I allude to ; but these benevolent sen-
timents at that time had no room in their breasts ;
This navy has re-produced again and a^ain, the
reimbursement of its expenses, and in a financial
view has been. all important. They talk of the
direct tax ; of their's bein^ the repealing system ;
of abolishing the internal revenues ; and claim
great credit that they are enabled to dispense with
them. What is the source from whence you de-
rive ten millions of dollars ? You must answer,
from commerce. What would have become' of
this revenue, if, according to their system, it had
been abandoned to its fate, and no navy created
for its protection ? What, if, according to them,
we had not permitted the merchants to arm their
own ships at their own expense? What would
have been the resources on which you would rely
for the payment of your debt which they tell us
they mean honorably to discharge, without bor-
rowing? and what your means to meet the ordi-
nary expenses of your Government ? Alas ! but
for this navy, and the measures of those whose
motives it is so desirable to gentlemen to asperse,
instead of repealing your internal revenues, you
would have been now under the necessity of in-
creasing them tenfold ! We have enabled them
to pay the debt, to pay their friends now at th)e
head of affairs, and to repeal the internal taxes, by
the protection of our commerce ; and whilst tney
claim all the credit from this measure of repeal,
they cease not to villiiy the only act without
which it could not have been accomplished. The
only thing to be lamented, sir, is, that the creation
of your navy was so long postponed ; for other-
wise we should not now be called on by your
mercantile citizens for a reimbursement ot those
twenty or thirty millions which have gone into
the pockets of French privateersmen.
But, Mr. Chairman, let us have a word or two
on the subject of this Executive patronage. My
colleague has said, we have looked up to the Brit-
ish monarchy as our prototype, and has read to us
a passage from " Blackstooe's Commentaries," to
prove we have been servilely devoted to the prin-
ciples therein contained. If he means that there
is, and has been a parly in this country that be-
lieves that the House of Representatives is not
the sole depository of power in ourGrovernment;
but thai the Executive is as much the representa-
tive of the people for executive purposes, and the
Judiciary the agenis of the people, for judicial
purposes, as we are for Legislative purposes ; and
that this party has constantly maintained a con-
flict, for the purpose ot preserving to each depart-
ment the powers which have been delegated to
them by the people, against those who have un-
839
HISTORY OF CONGRESS.
m
H. OP R.
Judiciary System.
Februabt. M.
ceasingly exerted themselves to draw all power
ioCo the hands of this body ; then I confess myself
obnoxious to the charge. We have apprehended,
on the contrary, that a success on the part of our
opponents, in prostrating the Executive power
with respect to treaties and foreign intercourse,
so often essayed under the former Administration
by the friends of the present Executive, and other
powers which belong to that department over
which this House has hitherto claimed a control ;
and as we now suppose the prostration of the Ju-
diciary, which will be the inevitable result of this
measure, would establish over our free and happy
country, a legislative despotism, no less tolerable
than the despotism of a monarch. That having
broken down the other branches, they would pro-
ceed to organize their committees of Interior and
Exterior Relations, of War and the Navv, of Fi-
nance, and ultimately of Justice ; and absorb all
the powers of Government in the tremendous vor-
tex of legislation.
Mr. Chairman, the era of Executive patronage
is precisely coeval with the commencement of the
present Administration ; yes, sir. it has been re-
served tor this Administration to attempt to estab-
lish a complete dominion over the heretofore free
minds of your Executive officers, and to invade
one of the most sacred rights of an American cit-
izen, the right of suffrage ! To expect, sir, that
any President of this country can ever render
himself formidable to our liberties by directly ar-
rogating powers not vested in him bv the Consti-
tution, is farcical in the extreme. Our ancestors
emigrated to this country, when regal prerogative
was in its meridian in the mother country ; and,
persecuted and suffering under the pressure of
executive authority, all the jealousies of their de-
scendants are directed to that quarter. But they
are not aware of the various shapes which the
Legislature may assume, from the indefinite na-
ture of their powers, for the establishment of an
unlimited authority. The Executive power is
more definite, and the Executive Magistrate in
this country who shall ever attempt a struorgle
with the Legislature, must yield in the conflict.
But he may stoop to conquer, and by appearing
to submit himselt to the will of the Legislature,
in order the more completely to govern them, and
through them the people, under pretext of econ-
omy, or some other pretext, may rule us with an
iron rod.
My colleague has said, he has heard of but few
removals from office of Executive officers, and
those defaulters and old tories. He has formerly
been in the habit of reading newspapers, for I re-
collect he gave us an account, which he said was
taken from a newspaper, at the last session, of a
man who died a victim under the Sedition law,
who turned out still to be alive ; and if he con-i
tinues to be in the same habit still, he must have
seen accounts of twenties and fifties of officers
turned out of office, who were of neither of the
descriptions alluded to.
Indeed I have known many war-worn soldiers
deprived of their offices, but no old tories. But
suppose there were some of them old tories, if they
had been ousted to make room for whigs. then
would have been some excuse ; but to turn ootdi
tories to put in old tories, did not appear to be lI-
together consistent, f Mr. Dennis then proceeiid
to state some instances of this nature, io sappor
of his proposition]
The gentleman from Virginia (Mr. GiLE3)k*
told us, that the tenure of good bebariour in tk
judges is only restrictive on the Execatiye, beaov
It is an exception from the power prerioaslf del-
egated to the President, of displacing all other (%•
ficers at pleasure. Has he shown us the pa$aie
in the Constitution which gives the PresideBii£i
general power of removal 7 He first sapposesihi
power to exist by express delegation, which is »
where to be found, and then makes this in eicfp-
tion from it. But he thinks he finds this yowera
the right of the President to commissioa til of-
ficers; and says, as he is to judge of theuimof
the commission, he will of coarse comsisa
them during his pleasure. Admit sir, that ht pos-
sesses this power under the ConstitatioD,(b8it)»
truth is he possesses it under a Legisiatire ui)
still it is but a constructive power, and thercmn
of the gentleman from Pennsylvania (Mr. Hu^
HILL,) that they make one implication vss
another implication in bolstering up this inthor-
tativeclaim, remains unshaken. We havebeentci
by my colleague and others, that the LegislaioK
possesses the same power of creating and potti^
down courts and the judges, as of dismissing exei^
officers, and of changing post roads and postois-
ters; but these gentlemen wholly forget, thiti
relation to these no restriction on the Legislati^
power exists with respect to the tenure of :b(i:
offices; and on this principle the tenure of foo^
behaviour means nothing, and is no nsUKm
whatever. 1 have, however, said that oor oppo-
nents claim not only the prerogative of a Brttsk
monarch, but also the omnipotency of tbeBriti^
Parliament; and as I think I have proved the &^
will endeavour to support the second propiK;(K«-
Here let me add together the different props!'*?
which different gentlemen have advanced, in fi^^^
of their claims to legislative supremacy. aQ^^^\
me then resort to Sir Edward Coke's definitiw*
the extent of Parliamentary authority, and I tbiu
it will result from the comparisons, that there e
scarcely any power contained in the one whkb
not included in the other. The gentleman fwa
North Carolina (Mr. Williams) says the ««?•
eign power here, as in all other countries it nis^
do, resides in the Legislature. The genileoa
from Massachusetts (Nfr. Bacon) supposes we ba«
the same power over the judges as over any oihs
officer. A gentleman from Virginia says oneCca-
gress can undo whatever another has done(Dv^
withstanding a Constitutional prohibition to i»
contrary.) My colleague (Mr. Nicholsok) sar?
the power of the people is like the suo, origji*
and inherent, and we possess their power as the:
immediate representatives; and the g^"^'^?!?
from Kentucky has discovered a cure for all d£-
culties,and with his sweeping clause, tells us Cofr
gress have the power of providing for the genf^^
welfare, and may do whatever they may cboo*
841
HISTORY OF CONGRESS.
842
February, 1802.
Judiciary System.
H. OP R.
to declare is for the public good. Now, sir, I will
read to you the deiioitioD ofthe powers of the Par-
liameDt,aDd will defy those gentleiueD to show me
one of the high aud mighty prerogatives inherent
io that body, which they do not contend for.
[Here Mr Dennis read, from Blackstone, Sir
Edward Coke's definition of the powers of Par-
liament.]
He then proceeded. — Shall I be told, sir, they
do not claim the ecclesiastical power 7 No, sir,
for they are claiming an exemption from all the
limitations of the Constitution, and converting it
into an unlimited power of legislation. Yes, sir,
to complete the catalogue of their unlimited de-
mands, we are told the judges are bound to pocket
their oaths, when they are called on to decide be-
tween a law and the Constitution, and are bound
to yield to the will of Congress declared by law,
rather than th« will of tne people proclaimed
through the Constitution ; that Congress, the crea-
tures and agents of the people, are greater and
more powerful than their creators, the people them-
selves. Congress, sir, are the attorneys of the peo-
ple, and to them, the people, who are our princi-
pals, have not given an unlimited but a special
authority to do certain things, and have expressly
forbidden them from doing certain other things.
We, however, not only do things not within our
commission, but something expressly forbidden,
and the judges are called on to decide between the
people, their principals, and us, their agents ; and
we are told they are bound to decide, in this case,
in favor of the usurped authority of the agent.
The Constitution declares, " Congress shall make
no law respecting an establishment of religion,"
^» Suppose we make a law establishing a na-
tional church, and compel persons of every reli-
gious denomination to attend that church under a
certain penalty. Other sectaries refuse to comply,
incur the penalty, and are prosecutedfor its recov-
ery. The defendant pleads the Constitu tion, which
is the act of the people and the paramount law, and
you say the courts are bound to convict them.
Again, " Congress shall make no law abridging the
freedom of speech or of the press." I have thought
there is a distinction between the freedom and
licentiousness of the press, and that, though a
man publish what he pleases, if it be not wilfully
and maliciously false; if he publish what he knows
at the time to be false and malicious, in order to
stir up sedition, tumults, and opposition to legiti-
mate authority, he is an offender, and ought U) be
punished. But suppose, instead of punishing, as
did the Sedition act, only malicious falsehood,
Congress, in imitation of the Directory and Charles
the First, should determine to put down all the
presses which they suppose unfavorable to their
ambitious views, and declare no man shall pub-
lish a newspaper without a previous license from
an officer appointed by the Qovernment ; and sup-
pose a printer proceed to edit a paper after being re-
fused this license, and he is prosecuted, are the
judges bound to convict? Theysay they are. Then,
sir, the judges are the creatures of the Legislature,
and not of the people; and whether they belong
to us or the people, is the question now between
us. Shall they be our judges, and as in England
they are said to be the mirror which reflects the
image of the King, here reflect our image? If
so, instead of bein^ a security to the lives, liber-
ties, and property ol the people, they are to be made
the engines of party vengeance, and the efficacious
weapons of arbitrary and tyrannic power. Charles
had bis Star Chamber, xind Robespierre his Re-
volutionary Tribunal, and bv the sanction which
the forms of justice gave to tne indulgence of their
wicked and' vile propensities, they were enabled
to veil the acts oi oppression which their private
animosities and aspiring views might prompt them
to execute on suffering innocence. In this country,
we may have our Hampdens and our Sidneys, some
great characters, whose resplendent talents, whose
prominent virtues, may render them obnoxious to
the Government, and the united rays of Legislative
and Executive indignation may kindle upon them ;
to what refuge will they fly? Shall I be told, if
their estates are confiscated, if Legislative attaind-
ers should denounce them as traitors to their coun-
try, a Judiciary, the mere creature of the Legisla-
ture, is to protect them? Should they be impris-
oned by the exertion of usurped authority, shall I
be told we have a habeas corpus to bring them and
their cause of commitment before the eyes of the
public ? Your habeas corpus is worse than no-
thing in the hands of judges, the mere sycophantic
minions of Legislative influence. Tell me not I
am winging my flight on fancy's pinions; the Con-
stitution has supposed the existence of these abuses,
and to say they will not happen is to be wiser
than the Constitution. Let us, sir. be more just
to that enlightened and patriotic Convention who
formed that instrument, than to suppose they
meant to guard only against the remoter evils of
Executive influence, and leave your Judiciary to
the varying dominance of alternate Legislative
factions. No, sir, they read of Legislative at-
tainders. Legislative confiscations, and Legislative
banishments, and therefore declared, " no bill of
attainder, or ex post facto laws, shall be made."
Nor were they such mere novices in political
science and the knowledge of human nature, as
not to know, that these paper restrictions were of
little avail without the practical means of eivinjg
efficacy to these declarations. And it was for this
purpose that they rendered the Judiciary a co-or-
dinate department of our Qovernment. I can
hardly forbear to smile at the ridiculous conceit,
when I consider thissubjectin connexion with the
constitution of Maryland. That constitution de-
clares, ^' the independence of the judges is es»en-
^ tial to the uprightand impartial administration of
* justice and a great security to the lives and liber-
' tiesof the people." Against whom are the judges
this security? They answer, only against the
Governor. Who is the Governor, and what the
extent of his powers? The mere President of a
Council, who, together with himself, are annually
chosen by the Legislature, and possesses scarcely
any attributes of sovereignty, whilst the Legisla*
ture are invested with almost unlimited power.
Now let me ask our opponents if it be expedient|
if it be desirable to any party, that all our politi-
843
HISTORY OF CONGRESS.
844
H. OP R.
Judiciary System,
Febbcart, 1802.
cal prejudices, oar parly passions, should mingle
themselves in our Judicial tribunals ; that causes
should not be decided according to their merits,
but according to the political principles of the liti-
fants? Spies and delators will swarm around, and
old inquisitions over your courts ; and instead of
applying to the Executive, as at present, for re-
movals of Executive officers, a base sycophantic
tribe will assail us with continual applications for
the abolition of offices. — •* In a certain cause, a
certain judge has abandoned his party and decided
in favor of an aristocrat, and has held doctrines
incompatible with republicanism ; he no longer
deserves well of his party, and his office must be
abolished, to make room for a more zealous par-
tisan." Such will be the language of your pa-
triots, and such the result of the principles of the
bill before us.
We are about to revive the old system ; a sys-
tem which heretofore has been universally admit-
ted to be defective, but which is now discovered
to be susceptible of no amelioration.
Here, sir, I cannot but express my own, and
I am sure the world will unite in the expression
of their astonishment, that they should declare,
that a federal Congress, who never did one soli-
tary thing before which has not called down
upon it the reprobation of these gentlemen, should
have made on the first experiment, a system in-
volving above all others the most complicated
and diMcult questions, which is so entirely per-
fect as that the united republican wisdom of all
the departments cannot discover one single amend-
ment. Sir, I cannot believe it, but must suppose
that this old system is to be restored, not because
it is the most perfect which can be devised, but
because it may be more compatible with the views
of our opponents to provide for some of their po-
litical friends than the one now in existence. It
will not do for them to abolish the existing courts,
and re-enact them for the purpose of substituting,
in the place of the present judges, others of their
own political prin.ciples. This is too bold a mea-
sure even for the enterprising spirit of the ma-
jority to attempt. But they may restore the old
system, and add a few of their friends to the Su-
preme Court. But have they answered the objec-
tions to that system ? Have they refuted the in-
vincible observations of my friend from Delaware,
on the oscillation of justice, and the irretrieva-
ble injury resulting to suitors, from the constant
change of judges, with their predilections for, or
their antipathies to the varying practice of differ-
ent States? No, sir, here little David himself, in
the stoutness of his heart, thought proper to shrink
from the conflict. Alas ! he had now lost both
his stone and his sling, found it prudent to fly
from the field of battle, and had ample reason to
regret his disobedience to the admonition of Saul,
for refusing in his eagerness for the combat to
bring with him his brazen hemlet and his coat of
mail. Are they afraid to give this system one
year's experiment, lest it should refute their cal-
umnies, and demonstrate to the public that these
judges, whom they are pleased to denominate
pensioners, will have business enough, and more
than they can perform? I will dare predict, sir.
that another session shall not have iraospireii
when they will discover, what everybody dot
perceives, the defects of this very perieci old sri-
tem, and improve it by the addition of seven oev
judges. Can nothing stay the uplifted arm d
party vengeance from prostrating our politicd
fabric in the dust ? It is in vain that ^ve have witi
us in opinion the whole choir of Virginia jod^es.
formerly expressed on an analogous occasion ; aci
among these I recognise the names of Pendletcix
of Wythe, of Tazewell, of Tucker, of Tyler, ai^
of others, who for the respectability of their iegil
and political information, are, with our oppooeo:s.
in high estimation, and all of whom are associaini
in their political labors with a majority of this
Committee. It is vain that the nation isdifided,
and men of all parties, respectable for their isfor-
mation, contemplate this repeal as aimiogaTiial
blow at the fundamental principles of the federal
compact; yes, they have commenced the work,
and it must be acco^nplished. It is equally vain
that we recommend to them the perusal of Mr.
Jefierson's Notes on Virginia, in which he deplores
that in that State all the powers of the Governmni
were resolved into the will of the Legislator?;
that it had been the intention of the fraroers cf
their Constitution, to keep separate the three d^
partments; but as the Judiciary and Exeeonre
were left dependent on the Legislature for sub-
sistence, and some of them for their daratiooin
office, the Legislature were daily in the habit cf
directing them both, in the performance of duties
exclusively delegated to those departments. We
deplore the circumstance, that by these mean?
there was a consolidation of all powder in tbf
hands of the Legislature, which, says he, is pr^
cisely the definition of despotism. It does act
avail us that they are chosen by ourselves, an elec-
tive despotism, says he, was not what we foa^ht
for. We are to reject, however, all thos« htgh
authorities and many others^ and all those import-
ant considerations, in pursuit of British analogies.
Sir, there are but two alternatives if we abdish
this system. You must either increase the num-
ber ot the judges of the Supreme Court, in whiek
case no money will be saved, or devolve on State
authority the execution of your laws. I hare
always conceived the greatest improvement cf
this Constitution over the old Confederation,
consists in its having the capacity to act on indi-
viduals and not on States merely, in their corporate
capacity. But we are now to be carried backt^
that old exploded system, and as we formerly de-
pended upon requisitions for revenue, are now tc
resort to them for supplies of justice. In case cf
conflicting laws between the States and the Uni-
ted States, we are to depend on State judg-es. the
dependants of State authority, and the servants c:
State Legislatures. Here, Mr. Chairman, I find i:
vain for me to attempt a development of all the
different topics. . I feel myself greatly exhausted,
and I feel for you, sir, and for the Committee.
It was my intention to hav^ given a particular
detail of the circumstances attending the Presiden-
tial election; but I will content myself with a few
845
HISTORY OF CONGRESS.
846
February, 1802.
Judiciary System.
H. OF R.
remarks coDceming it, and cooclude with them
my observations on the bill before you. The gen-
tleman fromVirginia (Mr. Giles) has mentioned
this subject for reasons apparent to us all, but from
his own statement, that perturbation, and those
angry passions witn which he would persuade us
the act of last session was accompanied, were ex-
cited long subsequent to the passage of the bill.
He has read to us the journals to show, that when
the bill was returned, signed by the President, we
were about to proceed to the twenty-sixth ballot.
But the bill had originated and passed this House,
gone to the Senate and passed through its various
forms, before we commenced that operation which
excited that ill humor and those party feelings
which he attributes to that transaction.
But that gentleman is under a great mistake in
point of fact. Yes, I believe the general idea,
during that memorable occurrence, was, that we
were influenced with all that passion and irritation
which party zeal and mutual hatred could inspire,
and were tearing each other to pieces, whilst shut
up in conclave. Nolhinff, however, is more re-
mote from the fact. Called on to ballot periodi-
cally, and liberated from that rigid confinement to
our seats, necessary in the transaction of our ordi-
nary business, we were at liberty to mix together,
and indulge ourselves in social intercourse; and
since I have been a member of this body, I never
saw so much freedom of communication and good
nature displayed by gentlemen of different par-
ties, as prevailed on that occasion. I happened
to be one of those who were rendered conspicuous
from having it in my power to decide the vote of
31 State. From the moment I knew the two can-
iidates, I did not hesitate to decide that, in my
opinion, the interests of the nation would be best
promoted in the election of the Vice President.
The friends of these gentlemen had presented
them to. us as equal in their view, and constitu-
tionally they were equally favored with the pub-
lic will. I did believe there was great doubt on
which side the majority of the people preponder-
I ted. Almost all those denominated federalists, I
lid presume, preferred Mr. Burr; and, by adding
:o them his particular friends in New York and
elsewhere, it was problematical, at least, whether
le had not with nim the major part of the com-
nunity. One gentleman (Mr. Randolph) has al-
uded to the blank votes, which from certain States
^ere the evidences of a dereliction of the contest;
ind has intimated that they were put in from a
'ear of responsibility, and for purposes of conceal-
nent. That gentleman was at the time applying
lis observations to the gentleman from Delaware,
ind it is wonderful he did not perceive that as he
[Mr. Bayard) was sole Representative from the
State, that object would not have been effected.
[t is a notorious fact, however, that before the
ballot, it was known by the whole delegation of
Vfaryland, and of other States, who put in the
blanks, and to all those who sat in the vicinity of
:hem, that this was the mode in which the con-
;est was to be abandoned. Our reasons for this
node are best known to ourselves. I have no par-
icular objection to explain them, however, had
they any application to the subject before us. I
will now conclude, though I have not exhausted
the observations which I had to make on this
subject, and with great cheerfulness resume my
seat.
Mr. S. Smith. — The question, Mr. Chairman^
ia not whether it was the President or Vice Pres-
ident of th6 United States whom the people meant
should preside over the affairs of the (Jnion. The
question is not whether Bonaparte ought to have
detached the right wing of the army of Egypt to
this country, in order to verify the fears of certain
gentlemen. The question is not whether the Pre-
sident was justifiable in selecting for the high offi-
ces of Government, men eminent for their talents,
men distinguished for their republican principles,
for their abhorrence of the system heretofore pur-
sued, and friends to a systen^ which the people
had, by their late elections, strongly marked as thai
which they wished to be adopted. The question
is not whether Mr. Charles Pinckney, who signed
the Constitution of the United States, a gentleman
always high in the confidence of the citizens of
South Carolina, whom they had twice elected
their Governor; whose services were so highly
approved, that immediately after his last term as
Governor had expired, the Legislature of that State
had chosen a Senator of the United States, was or
was not a bad character. The question is not
whether Mr. Edward Livingston, whose shining
talents are wellltnown to members in this House,
had discovered some new merit that had induced
the President to believe him fit for the post 6f
District Attorney. No, sir ; the question is, shall
the first section of the bill (now on your table) to
repeal the act entitled ''An act to provide for the
more convenient organization of the courts of the
United States," be struck out? This subject, Mr.
S. said, had been very properly divided into two
parts, the one the constitutionality, the other the
expediency of the measure.
To prove that Congress have not the power to
repeal the law in question, the gentleman from
Pennsylvania TMr. Heriphill) has favored the
Committee witn his observations, nor had he, Mr.
S.since heard any thing on the Constitutional point
that had not been embraced by the speech ot that
gentleman. He had been fully answered in a very
luminous speech by the gentleman from Virginia,
(Mr. Giles,) and very ably by the other gentle-
men on the same side of the question. It will not,
Mr. Chairman, be expected that one whose pur-
suits in life have not been professional, will attempt
to expound the Constitution to this enlightened
body, even if he had the power. Mr. Smith said
he would not be able to find one idea not already
presented to the House by gentlemen who had
preceded him. He hoped, however, that he would
be permitted to say, that in that House, in the Sen-
ate, nay, throughout the United States, gentlemen
learned in the law were divided on this question.
Did this division prise solely from a collision of
sentiments ? Or ' id it arise from the line which
divides the parties of this nation ? Wherever he
looked he found the professional gentlemen of one
party (with a few exceptions) giving their decided
847
HISTORY OF CONGRESS.
m
H. OF R.
Judiciary System.
Febrdary. \^A-
opinioD one way, aod ihose of the other directly
the reverse. How then are men not professional
to form their opinions on this great and importaDt
question? He knew but one-way; that was, to
read the Constitution with care, with attention.
and to judge for themselves. This, Mr. S. said,
he had done, and he had no hesitation in saying,
on the oath he had taken, that Congress bad the
Constitutional power to pass the bill on your table.
In this opinion he was warranted not only by
the opinions expressed in this House, but by men
highly respected for their talents, integrity, and en-
lightened understanding, in the different States.
He had seen the opinion of a great law character
in Massachusetts ; he had understood it also to be
the opinion of a gentleman in Connecticut, not in-
ferior to any in the bar of that State. He knew
it to be the opinion of gentlemen of the very first
legal abilities in the State of New York. It was
unquestionably the opinion of some of the legal
characters, the most eminent at the bar of Phila-
delphia ; and the letter read yesterday had shown
it to be the opinion of the greatest law character
in that State (he meant the Governor) that Con-
fess had the Constitutional right to repeal the
law in question. In the State of Maryland, Mr.
S. said, many gentlemen, learned in the law, con-
curred with him in opinion on this important sub-
t'ect. One gentleman of high federal authority
lad told him, that he had no hesitation in saying,
that Congress had the Constitutional right to re-
peal the law of the last session, but that Congress
were bound to provide for the payment of the
judges' salaries. This opinion, high in authority,
concurs fully in the power of the Constitutional
right Coneress has to pass the bill before you. The
providing for the judges' salaries will be an after
consideration. Congress may hereafter determine
■whether men rendermg no service ought to be paid
out of the public treasury. He might, he said,
go through the States southward, and quote the
opinions of gentlemen equally eminent for their
talents and ability, confirming the one he had
formed, but this heconceivedwoufd be unnecessary.
When thesentleraan from Virginia (Mr. Giles)
had quoted the statutes of Great Britain, he did
pot understand him to give them a preference over
the Constitution under which we act. On the
contrary, he quoted them to show^ that although
the judges were removable by a joint vote of Par-
liament to the King, yet that it had never been
said that the judges of England were not suffi-
ciently mdependent; their complete independence
has been admitted by gentlemen here, and has
been the glory and boast of Englishmen. An in-
stance of that independence had been given in their
conduct in the case of Wilkes, read (with a con-
trary view) by the gentleman from South Caro-
lina. The gentleman from Virginia (Mr. Giles)
meant to show, and in his opinion did show, that if
the judges of England had been deemed inde-
pendent for ages, although removable by a joint
address of Parliament, that the judges of the Uni-
ted States were much more so, when, agreeable to
his construction of the Constitution, they were not
removable in any way but by impeacnment, or
when the courts in which they presided W€i»
deemed by the three branches of tne Legislature it.
be useless and unnecessary. The gentleman (Mr
Giles) stated emphatically, that the judges wen
not removable from office, either by the PresidetL
or by the two Houses of Congress. But he coc-
tended,and with great force, that the power wh^
had organized new courts, could const iiQiiooally
put them down. In answer to this, the gentlesa
from Delaware had said, and seemed to rely ist^
on the observation that it is trulv paradoxical, tka:
the body having the power to cneck, should beii
the feet of the body to be checked. The ^entlema:.
from Delaware has himself favored the Gommi{:«
with a solution of this paradox; for he has said, liai
by the Constitutionsof Delawareand Pennsylraiiia,
judges in office during good behaviour roafk
removed by a joint address of tivo thirds of io^
branches of the Legislature to the GSovemoi. Oa
such address the Governor cannot refuse to reiao^c.
Here then the gentleman has himself shown, ihi!
the judges of Delaware and Pennsyl vaoia^bafuis
the power to check by declaring^ a law uncos^j-
tutional, can be brought to the feet of the bodf
checked; to wit, the Legislature, who can. by a
joint address, cause them to be dismis&ed: \f,
those judges are quoted by the gentleman himscl''
as being completely independent. "Will the ges-
tleman from Delaware say, that the judges of ik:
State are as secure in their offices as the judg«» zi
the United States, under the construction of ik
Constitution assumed by the majority? He cer-
tainly will not. The gentlemaa from Deiavan
has said, that worse men will probably succeed
the present majority, who will repeal the Judicial
laws, and re-enact them immediately, for the a-
Eress purpose of dismissing the judges; and isn
e says, has been done in Maryland. Id that State,
the gentleman said, they had repealed ibeir Ju-
diciary law for the avowed purpose of dismissicf
certain judges obnoxious to their politics, aod re-
enacted the same law without making onesotitarr
amendment. The gentleman was totally BU»ca-
ken. The fact is, that many valuable amead-
ments had been made.
His colleague (Mr. Dennis) had also said, ihit
the gentleman who had introduced the bill to i«>
peal the judiciary law of Maryland, had avowtc
that his sole object was. the dismissal ofthe judges
Suppose this to be the fact, does it prove thii
the law was passed with that view 1 No, sir, ifc*
law would not have passed, had there not beet
many and very beneficial amendments introdocfw
into it. Mr. S. said, he believed that this wki
not the first attempt made in Maryland. Hb eel-
league, (Mr. Dennis,) would remember an at-
tempt to put down the General Court, and mak?
the judges ride the circuits to each county ; lr>:
however he should have forgotten, he would re-
mind him that the gentleman who had proposn
putting down the court, had likened it to a tir.
table. His colleague will probably recollect t^a:
he was himself the prime mover in that attem^:>
His colleague, (Mr. Dennis,) had read a part cl
the Bill of Rights of Maryland, and said, he cooli
not but smile when he heard a gentleman frosn
349
HISTORY OP CONGRESS.
850
E<*EBRUARY, 1802.
Judiciary System,
H.opR.
that State (Mr. Nicholson) endeayoring to de-
stroy the iDdependence of the judges, in direct
iriolation of the Bill of Rights of his own State.
Had this gentleman read farther, he would have
ibund that a judge of Maryland ^'holding his
>ffice during good behaviour" may be removed
>y a vote of two-thirds of each branch of the Le-
pslature. Is their security in office, Mr. S. asked,
;qual to that of the judges of the United States'?
\nd yet his colleague would not say, that the
udges of Maryland were not independent. Mr. S.
hen said, that although unequal to the discussion
>f the Constitutional question, yet he hoped he
night be permitted to judge of the expediency
7f the measure. It had been o[)jected to the old
Fudiciary system, that men, venerable for their
^ears, were unequal to the labor of travelling from
)ne end of the United States to the other to hold
:heir courts ; he would admit that two of the
judges of the Supreme CouM were advanced in
ife, but he could not admit that the other four
were ; they were all younger than himself. But
le asked, why did the judges ride ? They were
lot compelled by law. it was optional with them-
selves, under tne first law, to have divided the
circuits, so as each should have taken that circuit
nost convenient to himself, nor is there anything
n that law as it now exists to prevent them.
SVhy did the judges not make such a division ?
Perhaps, he said, they might have had a desire to
iee the country, ana proposed riding, or it may
)e that a mode so troublesome might be expected
o promote the favorite object of confining their
iuties to their holding the Supreme Court only.
[f that was their object^ they fully succeeded by
:he passage of the Judiciary bill, now meant to
)e repealed. When the present bill has passed, it
will be fully in our power (and he would not vote
ibr its passage, if he was not perfectly assured that
it would be done) to introduce a bill amending
the old system, so as that each judge of the Su-
preme Court shall have his particular circuit des-
^nated^ at which he shall preside. For instance,
:he United States may be divided into seven cir-
cuits ; the first circuit to include New Hampshire
ind Massachusetts, where Judge Cushing may
preside, his associate judges to be the district
i udges of those two States. The second circuit to
include Vermont, Connecticut, and Rhode Island,
where Judge Patterson may preside, and his asso-
ciates may be taken from the district judges of
those States. The third circuit to include New
York and New Jersey, where Judge Marshall may
preside, and be associated with the district judges.
The fourth circuit to include Pennsylvania, Dela-
ware, and Maryland, at which Judge Chase may
preside. The fifth to include Virginia and Nortn
Carolina, at which Jud^e Washington may pre-
side. Tne sixth to include South Carolina and
Georgia, at which Judge Moore might preside.
The seventh to include Kentucky and Tennessee,
which may be conducted as it now is, or it may
return to the ancient system, or a new judge of
the Supreme Court may be appointed to preside
there, as gentlemen from those States may con-
ceive will best answer the interests of their fel-
low-citizens. On this plan, the objections of the
gentleman from Delaware (to wit: that three
judges had, all coming in turn to one court,
decided differently on the same case,) wiU he
avoided. This system will satisfy the bar of
Philadelphia, for it will secure to them a court in
the same manner as it now is held, with the ad-
ditional diffnity of having at its head one of the
Supreme Judges of the United States; and it
will obviate the objection made on account of
the judges travelhng ; none of the gentlemen will
have more riding than what will conduce to their
health ; and above all, it will avoid that want of
uniformity in decisions, which must result out of
the present system. It has been observed that
more speedy justice is had in the courts of the
United States than in the State courts, and there-
fore strangers would prefer going into them. It is
true, Mr. S. said, that this had been the case, when
the judges of the supreme courts presided in the
circuit courts, but not so now. He spoke only of
Maryland : in the last circuit court held in that
State, a rule was adopted and established, by
which it requires the same time to obtain judg-
ment in that court, as it does in the General Court
of Maryland. Here, then, is an essential dilfer-
ence already commenced in the manner of con*
ducting our courts. For instance, a citizen of
Maryland sues a citizen of Pennsylvania in the
circuit court of that State, and recovers the first
or second court ; the same citizen of Pennsylva-
nia brings a suit in the circuit of Maryland, and
to his astonishment he will find his recovery pro-
crastinated from year to year, perhaps for tour
years ; thus the plaintifif is greatly injured, so far
as relates to the State of Maryland by the new
system. Let us go back, he said, to the ancient
system, and we may then expect an uniformity in
the courts throughout the Union.
Mr. S. then said, that he would take leave to
remark on some of the observations made by gen-
tlemen m the course of the debate. The gentle-
man from Virginia (Mr. Giles) had taken a very
masterly view of the measures pursued from the
commencement of the Grovernment, which, in his
opinion, led towards monarchy ; he criminated the
views of none, but showed that such measures,
had they been pursued, would have gone to the de-
struction of our republican form of Grovernment;
he terminated this view by showing that the Ju-
diciary law was passed the last session by an ex-
piring party, not as a shield to protect them, but
as a strong arm (to which they willed all power)
held over the Administration, always uplifted, ana
ready to thwart, perplex, and strike the Govern-
ment. And has not the gentleman from Dela-
ware fully warranted, this opinion, when he said
that the judges ought to be of a different opinion
from the Legislative and Executive branches?
For those two, he said, will always come into
power with the same sentiments and at the same
time. Is it not fair then to conclude, from this
candid declaration, that the law which gentlemen
from the Federal party would not themselves per-
mit to pass in 1800, when they retained the power,
they did pass in 1801, when they knew that all
851
HISTORY OF CONaRESS.
85:
H. OP R.
Judiciary System,
FEBRnABT,!^:^
power had been taken from them ? Is it DOt fair
to conclude that the law was passed for the sole
purpose of embarrassing the new Administration,
by a new corps of men, clothed with omnipotent
power, and hostile towards it 7 And is it not just,
is it not right, to repeal a law passed with views
so wicked? It has been said by the gentleman
from Delaware, that he never did hear a Federal
man even hint the most distant wish towards a
consolidation of these Stales. He could not doubt
the gentleman's veracity; but he would say, that
he (Mr. S.) had been warned by a Federal gen-
tleman against the Judiciary bill, when introduced
in 1800 ; he had been then told that this was con-
sidered as an entering wedge, and that the Fed-
eralists hoped, if they succeeded, to be able to
establish courts in every county of the States;
that it was believed causes would be more speedily
decided in courts of the United States than in
the State courts; that State courts would first be
neglected and afterwards deserted, then declared
useless, and thus, step by step, we snould be led to
a national Government. But he did not mean to
say that such was the opinion of all the Federal
party ; he would indeed be sorry to think it was.
Objections had been made to the President for
presenting the document No. 8. It had been said
that he had no right to send that document; that
it was officious. This, Mr. S. said, was a doctrine
entirely new to him. The President might send
documents relative to every other subject, but he
must not peep into the courts; and why? Be-
cause it is said that no other President ever did
furnish a judicial document. And here, Mr. S.
said, he could but express his regret that the last
President had not (when he pressed the law upon
Congress) supplied such documents ; if he had,
every gentleman would then have seen how un-
necessary the law was, and no member would
have been bold enough to have proposed the cre-
ation of sixteen new judges, with salaries of two
thousand dollars per annum, when it would have
been palpable there was no business for the six
judges then in commission.
Mr. S. said, that of all the abuse poured out in
this House, or in public prints, to sully the fair
fameof the Chief Magistrate ofthe Union^none had
so much surprised him as that which had just fallen
from his colleague (Mr. Dennis.) What spirit
was it that could induce a gentleman so mild to
enter into such unqualified s^buse of the President,
and through him of gentlemen in private life, and
in public employ, by name? The gentleman had,
contrary to all order, attacked the Governor of
Virginia ; he had charged Judge Stevens, of Geor-
gia, with having deserted to the enemy. For this
e has been severely checked by the gentleman
from Georgia, (Mr. MilledgeJ who declared that
information to be a malicious calumny against a
man who more than once fought in his country's
cause, and ultimately was taken a prisoner; as
an apology his colleague (Mr. Dennis) said he
had his information from the Washington Federal-
ist. His colleague had charged the President
with turning out an old and meritorious officer,
the late Navy Agent of New York, and appointing
an old tory in his room ; here his colleagae k
again been mistaken. The President has Qotii.^?
to do with the appointment of the Navy A^tou
they are appointed by the Secretary of ibeXavj
and by him considered as a merchant, doing bsii-
ness on commission. Of the high respeciabiliiv
of Mr. Ludlow, as a merchant and an honest sii
no person, would express a doubt; of bis pn-Je-
cessor he would say nothing ; a suit wasDov(i^
pending between him and the United States; !2-
til that was determined it would be highly impropQ
to give an opinion of his conduct anywhere.^
at all times improper, bv name, in this Hoost
His colleague had heard of hundreds of meriiori.^
officers turned out of office without fault aod \i^
he also got from newspapers. Mr. S. Md
whether there were five turned out ofcficeoD
political ground. If gentlemen really w'Miot
information, why an officer had been pal om let
them apply to the proper office and thepil^
informed. He (Mr. S.) had done so; iotbecas
of the Collector of Savannah he did so,becn«ie
had seen several names (which he knew) t)^
address to that gentleman, highly censario? :»
President for his dismissal ; on inquiry be bi
found that the collector was not dismissed oiLp<:<
litical ground, but because he had oerer sen^«
one single account from the time of bisappoi.-
ment, although the law is peremptory tbatercy
collector of the customs shall settle his acci»:a-2
every quarter of a year. Let gentlemeD inqiit
and they will find tnat there has been good caaa
for most of the removals. But they will noin-
quire. It is better for men disposed to calumwi
the Administration to take newspapers than cSci
information. Mr. S. again inquired what ip
of faction was it that could induce a geotleoi^
so amiable in private life, to permit himseif tciii;
sail gentlemen by name under the pririicgc^
that House ? His colleague stumbled on the ess:
of the Berceau, and charged the President wiii
expending the public money on that shipvit^^'
authority. Does he mean to insinaate that tne
President is prodigal of the public treasure! u
he does, nobody will believe him. Howuti*
fact? The late Secretary of the Navy directed
on the nineteenth of December, eighteen hundrti
that theBerceau should be purchased for the C.i!'>^-
States; the same gentleman directed tbat oe
should be restored under the treaty, with all ktr
guns^ ammunition, apparel, and everything »•
longing to her; that ine delivery should bew®
as if there was no reluctance accompaoyiog ^^^.
restoration, and in such manner that do cai-^-
complaint should lie against the GorernmeDi ^
its agents. And conformably with the opicij-
and advice ofthe late Secretary of the Nary, Mi
Stoddert, a letter was written on the first of Apr-
(the day after that gentleman resigned) in ibei"^
lowing words, to wit :
" I have to request that you will be plcaied to t^
tain, without delay, the state of the French nttioiul^
Le Berceau was in at the time of her capture, u to v
armament, stores and provisions, and to cvxte bertox
put in the same condition before she is dellTered to v»
French Government''
853
HISTORY OF CONGRESS,
854
March^ 1802.
Judiciaiy System.
H.opR
He knew the amount of repairs roust appear
large; buthe had such high confidence in the Navy
Agent of Boston, that he would not believe one
dollar had been spent improperly. The ship hav-
ing been bought for the use of the United Slates,
the appropriation for the navy (of which she then
was one) fully covered the money expended. His
colleague (Mr. Dennis) in a triumphant manner
had boasted that near four millions of the principal
of the public debt had been paid off against the
jrear 17^8. If there was credit assumed for pay-
mgless than four millions in nine years, how much
more is due to the present Administration which
in nine months had paid off two millions two hun-
dred and seventy-nine thousand dollars of the prin-
cipal of the debt, and had then remaining as much
money in the Treasury as had been received from
the late Administration ? It will perhaps, he said,
give his colleague pleasure to know that at least
four millions more of the principal of the debt will
be paid off in the course ori802. Our constituents.
he believed, will be better pleased with the pay-
ment of the old debt, than the contracting of a new
debt at an interest of eight per cent. His colleague
had asked, who was it that talked of the merchants
as outcasts of society, as men not worthy of pro-
tection ? Mr. S. in return, asked who ever did ?
No person had in that House during the present
session ; and before this session, he had never
known gentlemen of any party so far forgot them-
selves as to go into unqualified abuse ol men by
name. He bad known on former occasions the
measures attacked, but never the men. That con-
duct was left for the friends of order to assume.
Mr» S. said that, during his absence for a few
minutes from the House, ne had been told that a
fentleman from South Carolina (Mr. Rutleoge)
ad charged the President with having thrown
away thirty-two thousand dollars in the expenses
of sending a gentleman to France, in the frigate
Maryland. In this charge the gentleman was un-
fortunate. He had stated the cost at thirty-two
thousand dollars : the real cost of the voyage was
but seventeen thousand four hundred and twenty-
eight dollars, as appeared by a statement which
he read. How was the fact? The Maryland was
prepared by an order of the last President, and was
actually held in readiness from the beginning of
February, to sail at a moment's notice with a
Minister for France. Her crew was on board,
and the ship was anchored below the fort.
The Maryland being prepared, it would have
been the height of folly not to have sent the treaty
by her. Suppose a messenger had been sent by^ a
private ship, and she had been met hyr a British
shii>-of-war or privateer, is it not certain that she
would have been detained? And would not the
gentleman from South Carolina, in such case, have
censured the President for an ill-judged economy?
Would not the merchants very properly have
complained at the delay occasioned thereby to the
restoration of their ships? These circumstances,
he presumed, had induced the President to direct
the Secretary of the Navy, on the 17th of March,
to order the Maryland to proceed with the gentle-
man who was bearer of the treaty:
Mr. S. then read the President's letter to Mr.
Stoddert, the Secretary of the Navy, in which
were the following words: *' The gentleman who
* is the bearer of the treaty is of course to have
' good accommodations in the vessel, and a parti-
' cipation of such fare as is provided for the offi-
* cers themselves."
Observe, said Mr. S., that particular expense on
account of the bearer of the treaty was actually
forbid.
The gentleman from South Carolina had also
(if he had been rightly informed) been unfortu-
nate when he said that an enormous expense had
been incurred by sending the Boston to carry Mr.
Livingston to France. The Boston was consid-
ered as one of the six ships peremptorily ordered
by law to be kept in constant service. She was
bound on a cruise to join the Mediterranean squad-
ron, called at New York for Mr. Livingston, and
on her route landed him at L'Orient, the nearest
port in France. This cost the United States only
the short delay of the ship; for Mr. Livinffston
found his sea-stores at his own expense. Under
the late President the sea-stores of Ministers and
Envoys were found, when on board a ship-of-war,
at the public expense, and seldom cost less than
one thousand five hundred dollars — sometimes
much more.
[Here Mr. Rutledge assured Mr. Smith that
he had not mentioned the Boston, and Mr. S. had
been misinformed by his friend.]
Mr. S. then said, that he had no doubt of the
constitutionality of the repeal, nor any of its ex-
pediency.and therefore should give his vote against
striking out the first section, and in favor of the
bill.
When Mr. S. had concluded, a motion was made
that the Committee should rise, which was sup-
ported by Messrs. Hill, Huger, Dana, Batard,
Nf ACON, Holland, Griswold, Bacon, Claibornb,
and Plater; and opposed by Messrs. Alston,
Giles, and Smilie.
At eight o'clock the question was taken — yeas
46, nays 43.
The Committee rose, and asked leave to sit
again ; on granting which there was a division —
yeas 48, nays 37.
Monday, March 1.
A memorial of Stephen Say re was presented
to the House and read, praying that Congress will
consider and decide on the petitions heretofore
presented by the memorialist, relative to an ade-
quate compensation for his services and expenses
as Secretary to the Commissioners of the United
States at the C6urt of Versailles, in the year seven-
teen hundred and seventy-seven.
Orderedj That the said memorial be referred
to the Committee of Claims.
JUDICIARY SYSTEM.
The House then resolved itself into a Commit*
tee on the bill, sent from the Senate, entitled '^Au
act to repeal certain acts respecting^ the organiza-
tion of the Courts of the United States, and for
other purposes."
855
HISTORY OF CONGRESS.
Sj-:
H. OP R.
Judiciary System.
Marc 8,1302.
Mr. Hill said the few observations he had to
make he would have offered before to the Com-
mittee could he have done so without interfering
with other gentlemen better qualified to do jus-
tice to the subject.
The best exertions of his humble talents would
at all times prove unequal to a question of such
magnitude as the one under consideration. Vain
indeed then must prove the attempt after the sub-
ject had been so well considered, and the argu-
ments so entirely exhausted.
He had determined to express his opinion by
his vote merely. He lamented the impulse whicn
obliged him to forego that determination — an im-
pulse created by allusions, too direct to be mis-
taken.
His respect for the Legislature of the State
from which he came also required he should as-
sign bis reasons for the conduct he should pursue.
That Legislature had recommended to the Rep-
resentatives of that State to vote in conformity
to the bill on the table. However great his re-
spect for that Legislature — however much he was
inclined to obey its requisition — yet, when be
found that respect conflicting with important du-
ties— when those re(}uisitions are opposed to ob-
ligations, sacred obligations, which imperiously
direct another course, he could not hesitate in his
decision. His conduct must be consistent; he
Yoted for the law proposed to be repealed under
the full persuasion that it was expedient ; he could
not vote for the repeal, because he was equally
persuaded it was inexpedient ; because he did not
consider himself authorized so to vote. He stated
that when he came into Congress, he came with
the conviction full on his mind, that the Judiciary
was a distinct, important, independent branch of
the Government; that to be efficient it ought to
be well orsanized ; that the then organization
was defective, greatly so ; that he knew from ex-
perience it was greatly defective; having been
for several years an officer of the United States,
in their established courts, he had an opportunity
of acquiring this knowledge by experience ; that
to a reform of the then existing system, the only
alternative which presented itself was a resort to
the courts of the several States. Considering it
a solecism in the science of Government; that one
Government should intrust the administration of
its laws to the officers of another, over whom it
had no control ; believing that no responsibility
attached to the State judiciaries, which would
oblige them to perform duties imposed on them
by the General Government, and knowing the
jealousy of the State governments, which had
been frequently evidenced against an amalgama-
tion of National and State authorities, the neces-
sity of a reform presented itself with |»reat force.
The circuit courts, as formerly established, were
directed to be holden by the judges of the Su-
preme Court, and the district judges in their re-
spective districts. By this arrangement six judges
were required to ride over this vast country twice
in each year; to hold courts as often in every
State, and this in addition to the duties required
of them as judges of the Supreme Court ; the
consequence was, that with all their exeruca
these judges found themselves unequal totllepf^
formance of those duties; and nothing but a re>
Ijance on the wisdom of Congress, which 6^-
ished the hope of. a new arrangemeot, reuiae^
them in office. Under that establishmaii tV
lapse of terms would unavoidably occur; it dj
occur frequently, and occasioned great iojarn;
all concerned in the courts. Another eiil is
the want of identity, and the resaltiog warn u
consistency of decision in those courts— pdv-
tive of delays and uncertainties, which coold u
fail to depreciate the character of the Jodician.
however upright and independent the judge-
that was an important defect abo which alM
the same judge to decide on your appeal wb
had pronounced judgment in your cvosei&ihi
inferior court. These and many other kporunt
reasons , which had been or might be addiceibl
decided his mind in favor of a reformaiioL is
the Judiciary system. Accordingly, in ibe k
session of the sixth Congress, he hadgifab
vote for a more convenient organizaiioa ol ilic
courts of the United States, and in the lost im^
he pursued the same course. Actuated bjaiu
to promote the due administration of io5iicf.'<i
elevate the character of the Americao Judicim,
and to insure the independence of the judje^ii
the safeguard of the Constitution, he had icf>
riably given his support to the law proposed wV
repealed ; he believed it to be expedient; hen-
satisfied it was Constitutional; ae still badi^
same impressions; and when he added, thau^
a doubt existed in his mind that a violatioD of t^
Constitution is involved in the proposed rcjjfij;
he should be justified in voting as he should tciz
on the present occasion. But, sir, it is aid iU;
the Constitution has already been violated; i^i'
the law proposed to be repealed violated the Co:-
stitution; that this assertion was groundless. Mr
H. apprehended, had been clearly demoDswied.
But suppose it was fact, would that jnsiifM>«^
ond violation ? He knew that in some laaW^
it was taught that two negatives made an »»•
tive ; but he had yet to learn the princijue a
morals which establishes that two wroogi vu
make one right. If gentlemen really believe '.»
Constitution has been violated, let itbeiotb«
an example to deter; let us unite oureffors^
heal the wound, and ioin in deprecatiDg ihf f-j
tempt that would enlarge it.- But how has ik
Constitution been violated? By detaching. i'-;
said, from the judges of the Supreme Court. »>•
the district judges, the right of holding thecirfj;'
courts ; let us examine this. It will be rtccf
lected, that previous to the law of last sessi«
there was no circuit judge ; the duties of ihefu-
cuit court were imposed on the Judges of the '.3-
preme Court and the district judges; to rdie'|
those judges from this imposition wasoneobj^
of that law ; another object was to make an i'*
rangement that should not require the i^^^'^
perform greater duties than thcj[ were aWe u
perform. Is it not a strange doctrine that ihti^
sening the burdens of office, the diminution on^
duties required to be performed bya judgeshoffl
857
HISTORY OF CONGRESS.
858
March, 1802.
Judiciary System.
H. ofR.
be considered as an infraction of his rights ? But
the last law imposed on some of the judges other
duties, which might be considered in lieu of some
of those from the performance of which they were
relieved ; for instance, by certain provisions in the
law, the judge of North Carolina district is re-
quired to hold nine district courts in each year,
and at three places in the district ; previously he
held but four district courts, and those at the same
place; that judge might have supposed himself
aggrieved by these provisions of that law ; but it
had not been suggested that he considered his
rights infringed by being relieved from other du-
ties. As he was instrumental in making this ar-
rangement, as to the courts of that district, Mr. H.
hoped he might be indulged in explaining the
reasons which had induced him to think these
provisions necessary, and as the law on the table
went to their repeal, he should not be considered
oat of order. The State of North Carolina has
an immense extent of seacoast. The chief sea-
ports are Edenton. Newbern, and Wilmington.
The first and the )ast are at the distance of two
hundred miles the one from the other j Newbern
about one hundred miles from each. The resi-
dence of the judge is the interior of the country,
near two hundred miles from Wilmington, the
place of most trade, and about one hundred miles
from each of the other ports ; the objects of the
jurisdiction of the district courts are chiefly causes
of admiralty and maritime jurisdiction. The
court to be useful and convenient could only be
made so by bringing the judge, at fixed periods of
time, to the commercial points of his district. The
difficulty of instituting a suit in the district court
of North Carolina, and the inconvenience of at-
tending it there, amounted nearly to a prohibition
of the process of individuals ; and, Mr. H. said.,
he knew demands had been relinquished and
claims abandoned rather than encounter these ob-
stacles. For these reasons the provisions on this
subject were introduced into the last law, at his
motion. And although much benefit may not yet
have been experienced by the new arrangement,
he had no doubt that sreat advantag^e would re-
sult therefrom eventually; he stated that he had
been informed, at a late term of one of those
courts, near thirty suits had been instituted. He
was thus furnished with another reason against
the bill on the table ; for an amendment which
should retain the benefit of these provisions of the
last law was inhibited by the consideration that
the imposition of duty would thereby be too great
on the judge of that district, who will have the
duties of the circuit court again imposed on him.
Mr. H. had listened with great attention, and
weighed with due deliberation all the arguments
which bad been offered on this important ques-
tion ; his conviction of the inexpediency and un-
constitutionality of the proposed repeal was there-
by enforced. When he found the best argument,
the one most relied on by the advocates of the re-
peal, on the Constitutional point, was derived
from a distinction, a fancied distinction — a dis-
tinction without a difference, between a removal
of a judge from office and the taking away the
office from a judge ; when it is acknowledged on
all hands that we have no power to remove the
judge from office; yet it is held that the thing
may be effected by taking the office from the
judge; he must be excused in declaring his belief
that such arguments, analyze or examine them as
you will, whether opposed by " boys" or contested
by men, would alike be found to be but '* shadows"
indeed.
He considered the Judicial power of the United
States as a vested power — a power vested in the
judges constitutionally appointed; it is vested by
the Constitution and cannot be taken away by
law. It was vested by the people in the majesty
of their power, and cannot be divested by any
power inferior to that of the people in the exer-
cise of their sovereignty.
The Constitution declares that " the Judicial
' power shall be vested in one Supreme Court, and in
^ such inferior courts as Congress may from time
^ to time ordain and establish." The Constitution
arranges the different branches of Government;
to each department a distinct article is appropri-
ated, vesting power and defining its limitation.
By the first article the Legislative power is vested
in the Congress of the United States, subject to a
limited veto of the President. By the second
article the Executive power is vested in the Presi-
dent of the United States ; and the third article
vests the Judicial power in the judges of the
United States, who "shall hold their offices during
^ ffood behaviour, and shall, at stated times, receive
^ for their services a compensation which shall not
'be diminished during their continuance in of-
* fice." The three branches of Government are
thus made distinct and independent of each other.
By what authority is it that one or two depart-
ments can put down the third department? Where
is it to be found? Is it found by construction ?
Then construction makes it as competent for the
judge and the Legislature to declare they have
the right to divest the President of the Executive
power, as the Legislature or the Executive, or
both, to declare they have the right to divest the
judges of the Judicial power. To his mind it ap-
peared clear and certain that no such right as the
one claimed did exist.
The members of both branches of the Legisla-
ture and the President are periodically elected,
and their continuance in office limited and defined
by the Constitution ; they depend on the people in
the exercise of their elective franchise for their
continuance in office. The judges, who are to
hold their offices so long as they behave well, de-
pend only on Grod and their own conduct for
their continuance in office.
" The judges shall hold"— What 1 « Their of-
fices," says the Constitution. How th^ can the
assertion be sustained that the Constitution is not
infringed, when that is taken from the judge
which the Constitution declares the judges shall
hold ? Has not the taking the office from the judge
precisely the same operation as the removal of
the judge from office ? Surel^r this will not be de-
nied. Is not then the provision in the Constitu-
tion as certainly contravened by the one as the
859
HISTORY OF CONGRESS.
^:
H. OF R.
Judiciary Sy8tem,
March, 1^':
other procedure? The frame rs of the CoDstitu-
tioD appear to have been Jealous, anxiously jeaU
ousj of an interfereDce with the independence of
the judges ; not satisHed with guarding them from
a direct removal from office, they endeavored to
provide against indirect means whereby the re-
moval might be effected, hence the provision
which forbids a diminution of the salary of a
judge. But, say gentlemen, compensation has a
relation to services so intimate, that unless one is
performed the other shall not be paid ; that when
the office is abolished, no service can be per-
formed; consequently no compensation is de-
mandable, and thus the difficulty is avoided.
This, to be sure, is a most convenient kind of
casuistry; an argument not expected to be heard
in this House ; subterfuges which could not fail
to attach disgrace on individuals, surely must be
unworthy of Government. To what does the ar-
gument amount? Does it amount to more than
this? (asked Mr. H.) I engage a man for a stipu-
lated sum to perform for me a certain service, and
while, in pursuadce of his contract, he is engaged
in the work, in order to avoid the payment of the
sum stipulated, I disable hiin from performing the
service; would this be warrantable ? could I jus-
tify it? Most unquestionably no. It is of the
highest importance the judges should be inde-
pendent; they are intended to stand between the
Legislature and the Constitution, between the
Government and the people ; they are intended
to check the Legislature. Should the Legisla-
ture even surmount the barrier of the Constitu-
tion, it is the duty of the judges to repel it back
within the bounds which limit its power. Were
they not independent, would they be equal to this
duly ? Could they perform it — dare they perform
it) if on the Legislature they were dependent ?
But, it is said, with a Government of responsibili-
ties like ours the uncontrollable power of the
judj^es is incompatible. Sir, no such power is
claimed for the judges; their office and duty is to
prevent the exercise of unauthorized power ; they
are not without responsibility ; they may be con-
trolled ; the Constitution provides the means. The
tenure of their office is their good behaviour;
when that ceases their term expires; and whether
they behave well or ill, it is not for them, but the
Legislature, to judge and decide. And here is the
Constitutional check on the judges; this House
may impeach, and the Senate evict from office a
judge. If he behave ill, a judge may thus be re-
moved, and the Legislature is restrained from an
unwarrantable use of this power by its own re-
sponsibilities. Mr. H. declared himself without
a doubt on the Constitutional point in question.
Much had been said concerning the manner in
which the law proposed to be repealed had been
passed. A gentleman from Virginia, (Mr. Giles,)
who had been up early in the debate, had taken
occasion to mention by name certain Senators,
and alleged that their voles carried this law. A
recurrence to the Journals of that day would show
the fact to be otherwise, unless the gentleman
meant to suggest, that the votes of those Senators
would have been the reverse of what they were
but for the prospect of their subsequent app.;-
ments. He would not suppose the geoikmas 2
tended this — it would be attaching on thechsn:
ters of those Senators motives too corrupt for ik
gentleman to charge on others io tbeir at«::t
The same gentleman, with great piaphasii i\i
marked the time when the Presideotiai appr^k-
tion of this law was announced to this Huuse.2r
13th day of February, when this House wis !^
j^aged in the choice of President! And the!; i»
gentleman directs his attention to the cires
stance of some of the members of thisHoase!^
ing afterwards appointed to office. As to p
time when this approbation was aDnouDced.Tiir
ther combined or not with the circumsuactc:
the subsequent appointments, Mr. H. declirptib
incapacity to discover what impressioo ib? £?£•
tleman thereby intended to make. Heecalinoi
have supposed it had any influence 01 die pu-
sage of the bill, for that was a retrospec&Teiela-
tion which could not exist. Did thegodenni
mean to suggest it had, or was intended 10 btt
any influence on the pending election? Thisfj
a suggestion unfounded. It was nerer ns^a-
stood, at least within his knowledge, tbatiheiu
President directly or indirectly interfered wii
this House in the choice of his successor; Dcr^ii
he ever hear that the late President espousdtK
cause of either the one or the other of the ci:?
dates for the sufi'rages of the States in this Ui^^^
equally difficult is it to discover the reUtic^^i;
which the subsequent appointments beartoihest^
ject of that election. Wherefore were thos J?
pointments mentioned ? Did thegentlemaDiani
to suggest that the members of this Hooif. *^
were distinguished by the President in his aJsp
quent nomiDations. were actuated by thepro^p^-
or promise of sucn appointments? Hewas*
willing to believe the gentleman did; such a 5^
gestion would be unworthy any man who did s-'
feel himself liable to be actuated by sDch Q-
lives; and should such suggestions be ntffit ^^^
isting facts would not sustain it; thecoodBci^
the members alluded to would prove ii ^ ^
groundless, and the majority in this Hoos k
that occasion was too decided to couoteaascn
belief that such means could be necessary.
Other members on this occasion and other*
casions had undertaken to make their allusioBj -
express their insinuations on the siibject of i^^
appointments — discovering a disposition to a«J'
improper motives to gentlemen onthisfloor. »
H. said, for his part, he was no motive moa,-^-
and although gentlemen diflferedfrom bimioF
litical sentiments, he was inclined toappr^*'
properly their views ; they were as much edij''^
to suppose themselves correct as he was; aau-
was willing to believe that gentlemen geDeia.
were disposed to do right. He would, hoveT^
caution those members who are inclined to cnc^'
nate, to be certain before they did so that j?
means of recrimination were not at hand, nj
might say, that inducements^ to pal dowD 'S-
present judges, were to be found in thexrwDf*-
gentlemen to advance theroselve.s, or to ni^
places for their friends on the bench of theto''^
861
HISTORY OF CONGRESS.
862
March, 1802.
Judiciary System,
H.opR.
States. He might say, that the proposed repeal
had numerous advocates, because it was a meas-
ure which emanated from the Executive; be-
cause his smiles are courted ; his favor hoped for;
his power to grant appoiutments regarded. He
might also say, that ^4f republicanism," as it is
called, "did leave this House when the British
Treaty came into it," that treaty had brought into
this House many foes to the Constitution ; for the
energies of that Government, which enforces the
payment^} of debts loug withheld, are not likely to
find friends or admirers among the coerced debt-
ors; these things he might say.
He would not, however, make the charges, be-
cause it was possible they mi^ht not oe well
founded. He disdained sucn motives himself, and
reprobated the practice of imputation too sincere-
ly to pursue it.
Mr. H. would inform the other gentleman from
Virginia, (Mr. Randolph,) who had alluded to a
gentleman from North Carolina on that floor as a
commissioned judge, that the member alluded to
never had such commission presented to him — of
course he had never the opportunity to accept or
reject it; he apprehended that it would be admit-
ted that the acceptance of a commission was ne-
cessary to make an officer, and that member held
his seat here by an authority equal to that by
which the seat of any other member was held ;
the free suffrages of a large and respectable ma-
jority of the tVeemen of the district he represents
IS his authority. The gentleman from Virginia has
certainly been greatly misinformed as to the mem-
ber from North Carolina. If he alluded to the
same member, when he assimilated certain charac-
ters as to their political tendencies to that of his
Pensacola Hero, his informer had grossly de-
ceived him. The fact or sentiment of an anti-
revolutionary adherence to the enemies of his
country never had attached, nor ever could attach,
on the character of the member alluded to. The
fact was directly the reverse ; that member had
not ceased to lament that his ability had not
equalled his inclination to serve his country in
her glorious contest for liberty and independence;
during that time he was but a boy; the only one
of bis family who was able, did share in the toils,
the perils, and the glory of the contest, and was
found among those who gathered laurels at the
springs of Eutaw.
The gentleman from Virginia was also mis-
taken as to the fortuitous circumstances relating
to the salary of the district judge of North Caro-
lina, at the last session. That was not a fortui-
tous occurrence ; it was designed ; that gentle-
man's friend from North Carolina was one of a
committee appointed to report on the salaries of
the officers; and, as Mr. H. had understood, op-
posed in the committee the measure of augmenta-
tion generally, and especially the increase of the
salary of the North Carolina judge, and as to that
judfi^e prevailed in the committee. In the House,
to the surprise of his co-members of the commit-
tee, the same member moved an amendment to
their report whereby that judge's salary should be
included among those which were to be increased;
the design was obvious; the circumstances being
known, the amendment was rejected.
Mr. H. said the member alluded to lamented
not that he possessed the good opinion of the late
administrations; it was his pride to have been so
distinguished. The suggestion was unfounded,
which had been made by some, that favoritism
was exemplified by the appointment of that mem-
ber by the late President. The relationship of
affinity or any consanguinity between the Presi-
dent or any part of his faniiiy and that memher
did not exist, he had not that honor ; but he had
filled an office before in the same department, un-
der a commission conferred by the first President.
To have been thus distinguished by the preceding
Presidents, that member considered as highly
honorable to himself. But it seems sufficient rea-
son with some to excite their irritation and dis-
play their irrascibility ; the motives and feelings
of that member are therefore to be assailed ; the
victim is to be sacrificed ; and the means are dis-
regarded bv which the offering is to be made ; the
well turned period of pointed invective, the gross
terms of mere vulgarity, the keen knife of the
skilful surgeon, or the edgeless tool of the clumsy
operator, are instruments alike acceptable. But
he would take leave to say, that the character of
that member is fortified by a barrier of integrity
which defies the malice and machinations of his
enemies ; happily possessed of ntens conada recfa,
he disregards the imputations which have been
made; thus shielded, the shafts of malice how-
ever directed, fall harmless at his feet, or are re-
pelled with accumulated force on those who cast
them. Mr. H. concluded with expressions of re-
gret that he had exhausted any part of the time
of the Committee in observations extraneous to
the subject under consideration ; but impelled as
he had been he hoped to be excused ; he would
return to the question before the Committee, and
close his remarks with one additional observa-
Uon ; thatj believing as he did believe, the essence
of civil liberty to be security, and that this bless-
ing would only be insured to ourselves and to our
posterity by tne government of laws directly ad-
ministered by upright and independent judges, it
was his duty to withhold his support irom any
measure which might possiblv contravene this all-
important principle; he should therefore give his
vote for striking out the first section of the bill on
the table.
Mr. Cutler. — Mr. Chairman : It is with ^reat
reluctance that I rise on this question, especially
at this late period of the discussion. Unaccus-
tomed to legislative debates, and conscious to my-
self that, on a subject which has already had so
able and copious a. discussion, it is not possible
for me to say anything which is not familiar to
every gentleman in this House, I should much
have preferred giving my silent vote.
But, sir, viewing, as I do, the magnitude of this
question, I feel it a duty which I owe to my con-
stituents— a duty, sir, which I owe to myself, to
state some of the reasons which have directed my
judgment, and on which I have founded my opin-
ion, in deciding on the bill before you. At the
863
HISTORY OF CONGRESS.
H. OP R.
Judiciary System.
March, l?:-
same time I feel it to be very UDpleasant to soli-
cit the attention of the Committee when I see the
patience of gentlemen so much exhausted. I
will detain them but a very short time.
In the pursuits of my life, sir, I have not been
led to turn my attention very much to systems of
jurisprudence, nor have I been conversant in
courts of justice ; but, on a subject as moment-
ous as this which now occupies the attention, not
only of this Committee but the nation at large. I
believe it not necessary to be an adept in political
science, in order to form a correct opinion.
Sir, I well recollect the time when the Consti-
tution, which authorizes us to sit here, was under
consideration in the State from which I came ;
and I am certain if the important feature of an
independent Judiciary had not been clearly dis-
covered in It, the adoption ot it would not have
been effected. Independent of what, sir ? Of the
overbearing power of the Executive and Legisla-
tive branches of the Government on the one hand,
and of popular whim and caprice on the other.
The people, generally, so far as my information
extends, and myself among the rest, believed that
our safety in life, property, liberty, and reputa-
tion, was secured by this all-important feature
in a Government, emphatically introduced " toes-
^ tablish justice, to insure domestic tranquillity,
' and to secure the blessings of liberty." And I
feel myself utterly incapable of comprehending
what gentlemen mean, when they suppose we are
safe under the administrationof a Judiciary liable
to be removed by the Legislative body anv more
than if they are liable to be removed by tne Ex-
ecutive. If passion, or any improper motives,
may induce the Executive to abuse such a power,
may not passion, or improper motives, operate
upon a Legislative body 7 And if I understand
the import of responsibility, as attached to a man
or men in public office, and producing the saluta-
ry effects of checking any of the imperfections
incident to man, this same responsibility operates
stronger upon an individual than upon a numer-
ous body of men ; and I must believe, because
such is the irresistible conviction of my mind,
that it would be safer to trust our Judiciary to be
removed at the will of the Exectitive, chosen, as
he is, once in four years, and solely responsible,
than to the Legislative body, who, by dividing
the blame, if any be imputable, will unavoidably
reduce it to nothing.
Mr. Chairman, with these impressions upon my
mind, and understanding, as I do, the words of
the Constitution, I have not a doubt the inde-
pendence of the Judiciary was intended to be se-
cured, as much against the power of the Legisla-
ture as the Executive. If words are to convey
ideas to plain men, not used to the subtilties of
legal proceedings, which I must believe was the
intention when this Constitution was composed,
they can, in this case, convey but one idea. When
plain men, of common sense, read this part of the
first section of the second article, ^' the judses of
* both the supreme and inferior courts shall hold
' their offices during good behaviour." will not
the irresistible impression be, that these words
were intended to give entire security lo the JQi|?
so long as they behave well? That good sr
haviour should be their security against \k &
c roach men ts of any power created by tbbif
strument? And will not the impressioa be fr!>
cisely the same when it is read bymeDcfi>
strictest logical and grammatical correctnt&i
If no crafty imposition upon the public mindrj
intended — if the true construction of an instru-
ment, involving their dearest ris^fats, wasnoicD-
cealed under implications and far-fetched M^
tions — if there was not an intention to deceti
can this plain sense of it be rejected?
But, sir, if the construction of the ConstitLiic
gentlemen contend for be correct, this aitic/
gives not the least security. If the Legislaiict
can remove the office when they please sad iM
course the judges, can gentlemen show rk'tf-
curity is given by this article? If it TOiniesil-
ed to guard only against the power of thcEi^-
utive^ why was it not so expressed? TlK»«a-
rity IS no more nor better than it would bi«
been if the article had expressly said: "Tl^
judges of both the supreme and inferior ctsi'j
shall hold their offices during the pleasore oi ^
Legislature." If we depart from the plain la-
ter, to make out a meaning by hard constrnctici
we may give any sense to the Constitmiou v
please. Here an insuperable objection ari!^-
my mind to the constitutionality of this b.
Much ingenuity has been displayed in the ci^
of this discussion, by gentlemen who adrof*^
the bill, but the point on which the qoRtios ::
constitutionality principally bears, hasbeeoslt|^
ly passed over, or the plainest and most forciti*
arguments left unconfuted. The UBsophistioeJ
common sense of honest men, who have cdj
common understanding, will compel them to !^
lieve the Legislature is not vested withpoiwi:
remove judges at pleasure. If the CoostititfJ^^,
does not place the Judiciary out of therf«^^
removal, as well by the repeal of the law f*'*^
lishing the courts, by which they act as ]^^
as in any other way, they hold their offices, oc^
during good behaviour, but during the ple^^^
of the Legislature.
If the judges should misbehave, the ConstituJ '■
has wisely authorized an impcachmeoijandacc:
viction involves in it a removal from office k*
very few words the wisdom and design ^^^^^f
stitutiori is developed. We are not to sufferoi*'
the administration of bad men, because if their «^
duct is bad, they can be removed. Ncitherar?*'
to suffer from a fear which the judges may fef •
being crushed by the weight of Executireorl^
gislative power, nor from the sovereignly «*
people operating in elections. " The fear of id^'
bringeth a snare," and in no case can thisff»r .
so much injury, as in the character and persos^
a judge. But I will not, Mr. Chairmao. tire a
the time of the Committee in reiterating argac^
which have been so clearly and forcibly impresjf
at least, upon my mind, by the honorable g«»'-
men wno have opposed this bill.. . u
Sir, this Government has been empbaJi^-
styled a Government of checks and balances- *
865
HISTORY OF CONGRESS.
866
March, 1802.
Judiciary System.
H. OP R«
has been so understood by the people; tind in this,
more than in anything else, ha^e they seen their
own safety in the delegation of power. I believe
it was the intention of the wise framers of the
CoDstitation, that the Judiciary should form, not
a '' subordinate, but a co-ordinate, branch of the
Government." By making the Judiciary, equally
with the other branches, a component part, a check
was formed, not less necessary to the security and
freedom of the people, than any other contained
in the Constitution. This check erects a barrier
between the Government and the people, and be-
comes the bulwark of equal justice and equal
liberty. It is the only efi'ectual security against
the encroachments oi the Legislature upon the
Constitutional rights of the people, and forming a
wise and free Government, it will forever be a
desideratum to establish, immoveably, an impar-
tial, inflexible and sacred administration of justice.
I was happy to hear the other day, an opinion
which was in perfect unison with my own, so de-
cidedly advanced by my honorable colleague, on
the opposite side of the House (Mr. Bacon.) He
declared it was an opinion he had weighed m his
own mind, and whatever conclusions might result,
he should still adhere to it, that the judicial offi-
cers of every grade, from the judge of the Supreme
Court of the United States down to the common
justices of the peace, not only have a right, but
are bound by their oaths of office, to judge of the
constitutionality of the acts of Congress. And I
should be still more happy to find the opinion of
that gentleman according with my own, in op-
posing an act which is hostile to the very princi-
ple he so confidently advanced.
It has been, Mr. Chairman, repeatedly said, that
this independence of the Judiciary would involve
in it a destruction of the Legislature; that the in-
dependence contended for, would in its conse-
quences erect the Judiciary into a despotism. But
it has as often been answered, that the Judiciary
commands no money— makes no laws — and this
completely removes from my mind every appre-
hension ot danger. Any power the Judiciary can
assume oyer the Legislature is merely negative
— it is of the preventive kind — it is only calcula-
ted to prevent injury and not to inflict it. The
moment they attempt to inflict punishments, not
authorized by law, an impeachment is an effectual
remedy.
Sir, if the bill on your table passes into a law,
I can see no obstacle to the passing another simi-
lar to the act repealed or varying from it, esta-
blishing the same or a greater number of judges.
The next Congress may go on to do the same,
and a perpetual fluctuation of your iudges must
be the inevitable consequence. If the Constitu-
tion was not meant, among other things, to guard
against sach an abuse of power, I cannot see for
what purpose those words were introduced, show-
ing the tenure of office in your judges to be solely
that of good behaviour. If the words in the Con-
stitution have not done it, I cannot discover the
use of words, nor the benefit of intellect in giving
them an explanation. I must subscribe to the
opinion of the President of the United States, ex-
7th Cost,— 28
pressed on a late occasion, which I believe to be
perfectly correct, that the true construction of the
Constitution, is the "safe and honest meaning
^ contemplated by the plain understanding of the
' people at the time of its adoption."
Mr. Chairman, before I sit down, I will make
one or two remarks, on an observation I do not re-
collect to have been noticed, which fell from an
honorable gentleman from North Carolina, whose
political knowledge and talents I respect, and with
whose candor I was much pleased. This gentle-
man (the honorable Speaker of the House^ has
said, and seemsto rely much upon it, that all the
evils which can possibly be apprehended from the
passing of the bill, or any other improper act of
the Legislature, may be cured by future elections.
I cannot help doubting^ whether the gentleman has
contemplated the full extent of this doctrine. It
goes, in my opinion, wholly to set aside a written
constitution. It is not in my power to conceive
that elections area remedy for every encroachment
the Legislature may make on the Constitution. It
must be a very uncertain corrective in instances
of the most flagrant violations, and in smaller ones,
it is none at all. There is not responsibility enough
attached to the individual members of this House
to render elections a sufficient corrective for the
abuse of power, if the acts of the Legislature,
which shall violate the most plain and positive
provision of the Constitution, can only be corrected
oy an appeal to the opinion of the people, to be
manifested by the exercise of their right or election,
we lose the advantages we expect to derive from a
written Constitution. And public opinion, which
can never be accurately ascertained, and which is
continually liable to fluctuation and change, will
be our political constitution. If the time should
come, which I hope has not yet arrived, when pub-
lic opinion is to be the only corrective of the aouse
of power. Constitutional rights will be reduced to
a phantom, and the fair fabric of our national inde-
pendence, liberty, and safety, will be levelled with
the dust.
But. sir, I will not detain the Committee at this
late period of the discussion, when it is not possi-
ble for me to add to the weight of argument and
mass of information, which, in a manner so lucid
and impressive, has been given to this House. I
have thought it a duty thus far to state my own
ideas on a subject which has excited much appre-
hension. The distinguished talents and informa-
tion of gentlemen, who are of opinion that the
passing this bill will be no infringement of the
Constitution, command my respect. But when I
find them leaving the plain words of the Constitu-
tion— the plain import of terms used without lim-
itation, without being applied to any particular
department — implying no more restraint upon the
Executive than upon the Legislature, and under-
taking to support their opinions on constructions
and implications — when I find them denying that
the Judiciary ought to be independent, I am forci-
bly led to the conclusion, that they are mistaken.
And if the case is even doubtful, that the safest way
is not to act at all. I had rather leave the laws in
operation than hazard a breach of this inviolable
867
HISTORY OF CONGRESS.
S6>
H. OP R.
Judiciary System.
Mabch, ISTl
instrument. What evils may we not suffer, if we
by repealing this law shall in event, be found to
have broken the Constitution ! They may extend
beyond the power of calculation. It must be left
to imagination alone to portray the picture which
may be dreadfully realized.
What shall we suffer, sir, if, by doubting its
constitutionality, we suspend the repeal to another
session? I must confess to you, sir. my informa-
tion is too limited to attempt a consideration of the
expediency of the repeal. But so far as I can judge
from the copious information given to the Com-
mittee, the expense, compared to the benefits which
may arise from the present system, bears no pro-
portion to them. I am as much disposed to pro-
mote economy as any gentleman on this floor, but
economy becomes a public injury when it is not
subservient to the public good. The saving ex-
pense alone, in this case, can afford little or no ar-
gument in favor of the repeal. From many parts
of the Union, we find the courts, by the little ex-
perience already had, are in high estimation. I
should therefore wait until further experience de-
termine the propriety, or impropriety of a repeal.
Diffident as I may feel of my own opinions on a
subject like this, when called to vote under a sense
of moral obligation, and the solemnity of an oath
I have taken on this floor to support the Consti-
tution, I must give a decided negative to the bill
on your table.
Mr. Holland. — At this advanced period of the
debate it would be improper for me to enter
largely into the discussion of the present question,
a regard for our time, a respect for the honorable
gentlemen that have gone before me, and a respect
to you, sir, forbid it. I shall, therefore, confine
my remarks to the most prominent objections that
have been made to the passage of the bill on your
table.
The first objection to the passage of the bill is,
the want of Constitutional power in the Legisla-
ture to pass it ; and the second ground of objec-
tion is. that if the Legislature have the power,
that it is improper to pass it at this time.
As to the first objection, it is laid down as a
maxim, that the same power that can create can
destroy, and that the power that gives has a
right to take away that which is given. The first
maxim relates to the Legislative, the second to the
Executive power. But it is said, that these max-
ims do not apply to the present case. That the
Legislative powers have been limited by the char-
ter under which we legislate, and that the limita-
tion extends to the present case. And it is also
contended that the appointment of judges is not
an Executive act, but the act of the people, and
therefore they cannot be removed but by the people.
If, upon examination, either of these assertions
are true, I shall be ready to concede the point, and
shall sav at once that the bill ought not to pass,
and will give it my veto.
As to the first maxim, I shall contend that if it
holds good in any case, it ought to hold in legisla-
tion ; legislation being a science so essential to the
happiness of man, and so little understood, owing
to the many obstructions that have been thrown
in the way by wicked and desi^oiog meo. m:
ought to be at liberty ; the Legislative mind &Ll.
be at liberty to reconsider its own acts, ia orderL
benefit by experience. In the Executive aodJ^
dicial departments, the greatest part of their }e:<
are mechanical ; having no will of their owd.iiht
are obliged to execute the will of the oatioo ; k
even they have a right to correct their own err:"j
The Executive can dismiss from office pe^?&:
that he has taken into service by mistake. 1^
Judiciary can revise and reconsider their •:«:
judgments, reverse their own decrees, and cor?Ec:
their own errors. Indeed, this seems to be aca-
mon inherent right in all men, whether consii^r-
ed in a private or public capacity. And in iL
limitation to this rule the act may be properir
said to be not the act of the agent but tbeafio;
the principal, the agent not being respoDst^f^'
the result. But, with respect to the pofcnis*
signed to Congress, they are ample to iUc^jr'j
submitted to them, they are numerous and dtiaei
in the eighth section of the first article cf'i;
Constitution ; there is not the smallest iDdiea-i^
of a restriction where they have power to act c
had acted, except in the case of the compeosiia
of the President and judges' salary, they arfc
to be diminished during their coDtiouaoceiu
fice. Tb is does not restrict Legislative powers:
the institution under which the judges hold r-j
office; if this restriction had been intendeJ
would have been expressed in unequivocal vr:-
words that would have applied to the office '^
not to the officer, such as that the judges s x
hold their office during good behaviour. id\y-
office shall not be abolished. This not h3u:
been said. I am unwilling to suppose thaiiliH':-
mers of the Constitution intended to restrict L^
gislalive power; that they intended to prera^
them from having it in their power at all iiflK>'
reconsider their own acts, and toputdoni^
less, inconvenient or expensive institoiiooi. ^^
unwilling to suppose that the conventicoiBtfod-
ed to keep up the office for the sole use of ik«"^:
cer. That the office and the officer bein^cieit^'^
by the people in their Legislative and Execot-^
capacity^ tne people in the same capacity cas a
pense with them, when, in their opinioDiihef ^"^
useless ; a contrary construction would be u'-
proner limitation of Legislative powers, and p^
cluae the benefit of experience.
I shall now consider more particularlr tov>^
the words, "and they shall hold their office dur::
good behaviour," alluded to. By the eWeB-
section of the second article of the Consiiio"^
"the President shall have power, by and viiii*
advice of two-thirds of the Senate, to make "J*
ties, to nominate and appoint Ambassadors. i^
public Ministers and Consuls, Judges of the if
preme Court," dtc, and by the last clause «
President has power to fill up all vacancies^*
may happen during the recess of the Senatf |J
granting commissions which shall expire a: '
end of llieir next session. From ^'>**?^"^r?i
evident that the appointment to office is ao t^
uiive act. that the Senate, when advising. art"
the exercise of Executive duties; the appoints*
369
HISTORY OF CONGRESS.
870
March, 1802.
Judiciary System,
H. OP R.
s an Executive choice, it is an Executive eift Co
:he person to whom the office is oouferred. ne has
t Dot by purchase, he has given nothing in ex-
change, but holds it as a gift, and unless otherwise
checked, at the will of the giver. Hence the fra-
ners of the Constitution thought proper to re-
train the power of the giver, to wit, the Execu-
ive, by inserting the words before staled, ^^and he
ihall hold his omce during good behaviour." If
hese words had not been inserted the judges
vould have held their offices by the same tenure
IS Ambassadors and other officers under his gift,
iubject to be removed by Executive pleasure,
^nd I cannot but think, that the Convention had
I reference to the tenure of the judges in Great
Britain, and observing that the will of the Exec-
itive was there limited, they thought proper to
nake a similar restraint upon the will of the Ex-
ecutive in this country. This, sir, is the most
correct opinion that I am able to form as to our
laving a Constitutional power to pass the bill on
^our table.
My colleague (Mr. Henderson) says, that the
enure under which the judges hold their offices
n the State from which we come is the same with
he tenure of the judges of the United States. He
s correct; not only the judges, but all the justices
>f that State hold their offices by the same tenure,
luring p:ood behaviour. But I think differently
rom him when he say^ he considers it not an Ex-
!cutive but a Legislative restriction. Soon after
he formation of our Constitution, our Legislature
massed laws organizing courts of justice, consti-
uted of inferior and superior courts ; the superior
ourts were held in districts by judges whose au-
hority extended to the utmost limits of the Stale,
ind had unlimited jurisdiction ; the inferior courts
yere holden by the justices of the respective coun-
ies, and had a limited jurisdiction with respect to
>fficers, and unlimited as to civil actions, subject
o an appeal to the superior court in all cases by
he party who thought himself aggrieved.
Notwithstanding the Legislature at sundry
imes has attempted to change the Federal sys-
em both of the superior and county courts, an
ittempt was once made to repeal the law consti-
uting the superior court, with an intent to vest
uperi or power in the county courts; if this pro-
ect had carried, the judges would have been put
lown ; and, indeed, when this subject was on the
apis, I never once heard it suggested, that on ac-
;ount of the office of the judges, that the Legis-
ature had not a power to make any arrangements
hey thought proper; indeed, it was said by mem-
bers, that the repeal would answer one good pur-
Dose, if no other, that by it the State would get
rid of one or two judges who were incapable of
performing their duties; but so it happened that
10 substitute could be proposed that obtained a
najority of the members, and no material change
las been made. And I am pretty certain had
:he friends of the judges suggested thai the Le-
risiature had not a Constitutional power to repeal
:he law on account of the offices of the judges
:hat it would have contributed to the repeal.
And with respect to the justices who hold their
offices by the same tenure as that of the judges, as
before stated. The Legii^lature, for the more con-
venient administration of justice, have thought
proper to divide a number of their counties; in
some instances neither division retained its origi-
nal name, as in the case of the county I live m,
and the county adjacent, both of which were once
known by the name of Tryon, after the British
Grovernor who joined His Majesty's forces, which
occasioned the Legislature, on the division, to
name the counties after two American officers —
Lynch and Rutherford. In this case the whole of
the justices were out of commission, occasioned
by a Legislative arrangement, and the Legislature
did not feel themselves bound to re-commission
said justices, their reappointment depended upoa
the opinion that was entertained of their merit.
And in all this it never once occurred to the Le-
gislature of North Carolina, that they had infring-
ed the rights of office or violated the constitutioa
of the Slate ; and, of these transactions, I appeal
to all my colleagues that hear me. And I further
say that the late Judiciary bill, even before and
since its passage, has been a subject of much con-
versation, and opinions freely e iven as to the pro-
priety of its repeal, but in all that I have heard
respecting it, the Legislative power of Congress
never was called in question. I further say, that
the objection is so new to me that I never heard
of it until I came to this city ; and after I found
it insisted on by gentlemen, I have paid due atten-
tion to all the arguments that have been advanced
by them, but to no purpose; my first oninion
stands unshaken, and I think, with the former
Legislatures of tne State that I have the honor to
represent, and with the present Legislature as an-
nounced by their resolution on your table, that the
words, *Hhat the judges shall hold their offices
during good behaviour,'' are not a Legislative but
an Executive restriction, and, under this impres-
sion, I feel at liberty to exercise my influence ac-
cording to the wish of the Legislature of the State
to repeal the act contemplated by the bill before
you. And I am far from thinking with my col-
league, (Mr. Henderson,) that the Legislature of
that State stood in need of the arguments of this
place to enable them to form a correct opinion as
to the expediency or constitutiunaliiy of the re-
peal. With regard to the expediency, so far as
relates to their State, they are the most compe-
tent on account of a complete representation of all
the counties in all their remote or various situa-
tions must be fully understood. And with respect
to the constitutionality of the repeal they would
be at no loss, having the whole evidence before
them— the act and the Constitution-;-thi» being
all that was necessary to the forming of their
judgment. I would asKmy colleague first up, and
the gentleman just sat down, if they think the
multiplied arguments made use of on this occa-
sion, have proselyted a single gentleman? I ihink
it will be answered in the negative. I shall now
proceed to make a few observations on the expe-
diency of the passage of the bill, drawn princi-
pally from what comes within my own knowledge.
I think I attended at two couru in the city of Ra-
871
HISTORY OF CONGRESS.
872
H. OP R.
Judiciary System.
March, l^'l
leigh ; it was at the time of the sitting of the Gen-
eral Assembly of that State, in the year 1797-'98.
I was in court in 1798, when his honor gave his
charge to the grand iury ; it principally consisted
in an eulogium on the administration of the Gen-
eral Grovernment. after which the court adjourn-
ed ; and on the next day the court met. made up
two or three issues, and, perhaps, tried a suit; and
on the third day the court having nothing to do,
adjourned until court in course. And I have un-
derstood that, in the other parts of the State, the
business was conducted nearly in the same way.
Indeed, I have understood that the Federal courts
there had little to do. There was one case that
eame within my own knowledge; it was a suit
that was brought against a poor man, on the other
side of the Appalachian mountain, as a delinquent
under the excise law, where the demand was
about seventeen dollars ; and, after the poor man
had rode near two hundred and fifty miles once or
twice, he paid the large sum of one hundred dol-
lars cost, and came off clear. These circumstan-
ces, with the resolution of the State Legislature,
is to me conclusive evidence that the original
courts were adequate to all the business for which
they were instituted in that State.
Having thus got over the objections relative to
the want of power, and shown the expediency of
passing the bill on your table, I shall take some
notice of another obiection that has been greatly
insisted upon, namely, if we pass this bill we de-
stroy the independence of our Judiciary. And if,
on examination, it is found that, after this bill
pass, our Judiciary will possess more independ-
ence, that they will stand further from the grasp
of Legislative or Executive power than any other
judiciary on earth, I hope gentlemen will concede
to the passage of the bill, in looking at this sub-
ject it will be proper to take a view of the judi-
ciary of Great Britain ; that is admitted to be the
best judiciary in the world, where independence
and fidelity have been admitted to be the glory of
the English nation.
The tenure of the judge's office there is during
good behaviour, or, m other words, against the
will of the Chief Executive Magistrate ; subject
to be removed by a joint address of both Houses
of Parliament ; and, in this case, the King has no
discretion, the address is imperious. Here, by our
construction, the judges cannot be removed so
lon^ as the Constitution, under which they hold
their offices, exists. To repeal this institution
there must be not only a majority of both branches
of the Legislature, but the consent and approba-
tion of the Executive are necessary, or otherwise
a Constitutional majority of both Houses. A gen-
tleman from Connecticut, (Mr. Goddard,) has
said that he has no apprehension of an abuse of
power in England j that it is not reasonable to
suppose that Parliament would make an improper
address for the removal of their judges; for that
the Parliament consisted of a democratic and an
aristocratical branch that would remain firm
against any improper impulse ; but that he appre-
hends that there is not tne same security in this
country. As the gentleman has not given a rea-
son for his apprehensions, it is bat fair to prelaw
that he has a higher confidence ia the Brir«:
House of Commons and Lords of Parliament iba:
he has in the American Senate and House .:'
Representatives, with the further additional s«:-
rity of the Executive of the United States.
A gentleman from Pennsylvania (Mr. Hejp-
hill) asked, what could induce the framer^of *i?
Constitution to leave it in the power of the Lfr-
lature to let their judges drop by repealing i:*
law by which they held their commissioDs? !
will answer that honorable gentleman by a^fc::
him what induced the convention that formed iIk
constitution of his State, to put it in thepowfr::'
the Legislature to remove their judges bra jcn:
address of two-thirds of the Lte^islature lo tM
Executive of that State 7 The motives ibari^-
erned in the one case probably governed ic ris
other, and I will submit to the opinion of thf Tfi-
tleman whether the removal by address i; iiOt
easier effected than by repealing the institu 3s
under which the judges acted ; the vote o(v^
Governor beinff equal to one-third of the Ler*^*
ture, equal to the Constitutional vote of the Pn^
ident of the United States ? A gentlemac frv=
South Carolina (Mr. Rutgedge) says, that if r
pass this bill we not only destroy the indeie'i-
ence of the Judiciary, but that Tve volania- .'
stab the Constitution in the most mortal part. T:
both charges, I say not guilty. Bat to prore li*
truth of the charges, he introduced the ouiUwr.
of Wilkes, in England, and stated that the jud^
had fortitude, fidelity, and independence suffici::' |
and reversed the outlawry. This case provt^!'-- ■
reverse of the position intended ; it proves tiu:
although the judges in England held their cf^^
by the courtesv of Parliament, yet they had rsr
tegrity and independence equal to the dis^ba^r?
of their duties, rrom which it must be infm^i
that our judges, not holding their offices at the w J
of the Legislature, are more independent aodci.v?
capable of discharging their duties.
And. as a further proof of our destropB; ih*
independence of the Judiciary, and stabbbz the
Constitution, the same gentleman informei u«
that by this means all Republics bad been destrry-
ed ; that Greece had fell, Rome had fell, and tba:
Venice, and the Republic of Switzerland, h::
fallen. I expected that the honorable mem':'::
was about to show that those Republics had falh-
because they had written constitutions, r&^ntz
certain powers in their Judiciary, and that tie
Legislative branches of those Grovernment^ hzi
destroyed their independence. The honorab>
gentleman says that we are the enemies of tb'
Constitution, and that he and his honorable friec:>
would do anything to save it. The manner thi:
those gentlemen formerly and at this time hir*
portrayed the Constitution, puts me in raind :•'.
Achilles the Grecian chief: tne Constitution^ Q?
this hero, at some times was invulnerable ; it «n>
adequate to every purpose ; it was broad, and ex-
tended its force against all opposition, like the bfr?
it nursed, and levelled armies, and now, like biin.
the only mortal part that the shaft of death czz
enter is at the heel. It is in the minor branch c:
873
HISTORY OF CONGRESS.
874
March, 1802.
Judiciary System.
H. OP R.
the Executive, the Judiciary, and id the miuor
branch of that branch, the sixteen judges.
A gentleman from Pennsylvania, and mv col-
league from North Carolina, has compared this
tenure of the judges to a contract, and says that
the same rule of ]ustice should be applied to them
as to individual contracts. I am not disposed to
contest this point. And what is the rule upon
contracts where work and labor is to be done?
Suppose a firm of merchants employs a clerk to
act as a clerk in their firm during good behaviour,
for which services said clerk had a covenant with
said firm by agreeing for a monthly payment of
a sum not to be diminished during good beha-
viour ? Is the contract binding upon the firm, so
that they cannot dissolve it? Suppose said firm
dissolves, what becomes of the contract? Can
the agent maintain an action in law or equitv for
the recovery of moneys for services which he
never did perform, or for services not wanted ? I
believe not, sir; and the principle holds good in all
contracts where services are to be rendered. If
anything occurs that renders the services unne-
cessary or improper, the contract is concluded, it
is at an end, a contrary priociple would lead to
many absurdities. A gentleman from Connecti-
cut has said that the words ^* during good beha-
viour" are so plain and easily understood, that a
3chool-boy would, without hesitation, answer that
it meant so lon^ as he behaved well, that it meant
during life, and would' not a school-boy also an-
swer that no person should be continued in service
longer than his services were wanted, and that as
soon as the services could be dispensed with that
^he person performing services s)iould be discharg-
ed, and, after the discharge, would not the school-
boy say that the payment should stop ? The gen-
ileman has said we may not commit murder by
running our sword through a man, but majr pusn
i man against a sword. Is there any similarity
in this case, in discontinuing a man from service
Bvhose services are not wanted, in discontinuing
in office that is unnecessary to be kept up, and
iven expensive and injurious to the community,
ind that of taking the life of a citizen ? I must
confess I see none. One being an act arising
rom just impressions of duty, the other an act of
ligh criminality. The same gentleman has said
hat we ought to be cautious in passing laws by con-
itructive right on the Constitution. This cau-
ion comes with a bad grace from that quarter,
ilas the honorable gentleman forgot the law passed
)y his support, where by a construction of guard-
Dg against the licentiousness of the press, they
massed the Sedition act, contrary to tne express
ivords of the Constitution ? These things are of
>o recent a date that they cannot be forgotten.
We have been too long amused by sound, by dec-
arations from that side of the House, but it is
)ow too late for declarations to obtain credit.
Arhen contrary to experience. We have been told
>y a gentleman from Delaware that he wishes to
;upport the sovereignty and dienity of the United
States, and at the next breath ne tells us and tells
he world, that he has no confidence in the major-
ty of the Legislature, and that he has no confi*
dence in the Executive. Is this the means that
he employs to support the dignity of the United
States? He has also said that the assumption of
the State debts was necessary for the remunera-
tion of the war-worn soldiers ; these were the
declarations by which this measure was carried.
But my 'friends in the opposition then declared
that it would not have tnat efiect, that, on the
contrary, the soldiers that had performed the ser-
vices, and that the citizen that had advanced his
property for the public service, would not be remu-
nerated, but that the whole would be cast into the
hands of a few speculators, and that the public
debt would be greatly augmented. And has not
all this been realized to a greater extent than was
even apprehended by my Iriends ? The same gen-
tleman has said, with one other gentleman from
Maryland, that the war in Europe, and the ex-
tent of the French arms, made it necessary to
augment and raise the additional armV) or to put
It in the power of the President to Jo so. my
friends then thought, as they still think, that the
French, whatever intentions of hostility they bore
to this country, would not invade it ; that they
were so encompassed by the Powers of Europe,
the thing was impossible. To these reasonings
my friends received in reply, that tbev were Jac-
obins, Democrats^ French partisans; tnen was the
time of political intolerance. But, havinc^ carried
the army, more was necessary, the opposition must
not talk, or at least they must not write about it,
unless they had always le^l evidence in their
pocket : to justify the Sedition law, it was neces-
sary to put down free inquiry ; and, after all this,
we are still told all has been well conducted ; ana
we are further threatened with civil war, if we
strike down this institution, an^ recommended to
take care of our wives and children. We are threat-
ened with the bayonet. Are these gentlemen
prepared, like their famous leader and author of
the funding system at New York, to shed their
hearts' blood in the opposition ? I trust they are
not prepared — they have no army of dependants
to second them in a design of tnat kind. The
good sense of America has at length seen their pro-
jects, and cannot longer be imposed upon by them.
A gentleman from Maryland (Mr. Dennis)
begins his remarks by giving us the homage of
his esteem* I would ask the gentleman, is this an
indication of approbation or contempt? He dwells
much on the name of General Washington, and
says that no monuments are building for him. I
cannot conceive any relation that this has to the
present question. And he says that Mr. Hamilton,
although he was the author of the funding sys-
tem, did not consider a national debt as a national
blessing, and, to prove it, reads a long report of
Secretary Hamilton to Congress.
It is true, in this report, there is no express
avowal of an opinion tnat a national debt would
be a national blessing; nor is it reasonable to be-
lieve that this avowal would accompany an offi-
cial report. But we are to judge of the intentions
of men by their actions, more than by their dec-
larations— ihe actions on many measures adopted
by Government lead to the proof— and I think I
871
HISTORY OF CONGRESS.
872
H. OP R.
Judiciary System-
March, WM.
leigh ; it was at the time of the sitting of the Gen-
eral Assembly of that State, in the year 1797-'98.
I was in court in 1798, when his honor gave his
charge to the grand jury ; it principally consisted
in an eulogium on the administration of the Gen^
eral Government, after which the court adjourn-
ed ; and on the next day the court met. made up
two or three issues, and, perhaps, tried a suit; and
on the third day the court having nothing to do,
adjourned until court in course. And I have un-
derstood that, in the other parts of the State, the
business was conducted nearly in the same way.
Indeed, I have understood that the Federal courts
there had little to do. There was one case that
eame within my own knowledge ; it was a suit
that was brought against a poor man, on the other
side of the Appalachian mountain, as a delinquent
under the excise law, where the demand was
about seventeen dollars ; and, after the poor man
had rode near two hundred and fifty miles once or
twice, he paid the large sum of one hundred dol-
lars cost, and came on clear. These circumstan-
ces, with the resolution of the State Legislature,
is to me conclusive evidence that the original
courts were adequate to all the business for which
they were instituted in that State.
Having thus got over the objections relative to
the want of power, and shown the expediency of
passing the bill on your table, I shall take some
notice of another objection that has been greatly
insisted upon, namely, if we pass this bill we de-
stroy the independence of our Judiciary. And if,
on examination, it is found that, after this bill
pass, our Judiciary will possess more independ-
ence, that they will stand further from the grasp
of Legislative or Executive power than any other
judiciary on earth, I hope gentlemen will concede
to the passage of the bill, in looking at this sub-
ject it will be proper to take a view of the judi-
ciary of Great Britain ; that is admitted to be the
best judiciary in the world, where independence
and fidelity have been admitted to be the glory of
the English nation.
The tenure of the judge's office there is during
good behaviour, or, m other words, against the
will of the Chief Executive Magistrate; subject
to be removed by a joint address of both Houses
of Parliament ; and, in this case, the King has no
discretion, the address is imperious. Here, by our
construction, the judges cannot be removed so
lon^ as the Constitution, under which they hold
their offices, exists. To repeal this institution
there must be not only a majority of both branches
of the Legislature, but the consent and approba-
tion of the Executive are necessary, or otherwise
a Constitutional majority of both Houses. A gen-
tleman from Connecticut, (Mr. GonnARn,) has
said that he has no apprehension of an abuse of
power in England ; that it is not reasonable to
suppose that Parliament would make an improper
address for the removal of their judges; for that
the Parliament consisted of a democratic and an
aristocratical branch that would remain firm
against any improper impulse ; but that he appre-
hends that there is not the same security in this
country. As the gentleman has not given a rea-
son for his apprehensions, it is but fair to prc<Dn*
that he has a higher confidence ia the Briush
House of Commons and Lords of Parliament thi2
he has in the American Senate and House rf
Representatives, with the further additional seca-
rity of the Executive of the United Slates.
A genlle^man from Pennsylvania (Mr. HE»^
hill) asked, what could induce the f ranier? of tk
Constitution to leave it in the pcwer of the Lep^
lature to let their judges drop by repealing ibf
law by which they held their commissions ? !
will answer that honorable gentleman by askisr
him what induced the convention that formed iIr
constitution of his State, to put it ia thepowfrc/
the Legislature to remove their judges by a jaiat
address of two-thirds of the Legislature to die
Executive of that State ? The motives tbi:^-
erned in the one case probably governed ji the
other, and I will submit to the opinion of ike^-
tleman whether the removal by address t§ uu
easier effected than by repealing the instirauci
under which the judges acted ; the vote of tbe
Governor being equal to one-third of the Leii^U-
ture, equal to the Constitutional vote of the Pre**
ident of the United States ? A gentleman fra
South Carolina (Mr. Rutgedgb) says, that if f?
pass this bill we not only destroy the inder«4-
ence of the Judiciary, but that Tve voluniariif
stab the Constitution in the most mortal f»rt. T:
both charges, I say not guilty. But to prove t!^
truth of the charges, he mtroduced the outlawr.
of Wilkes, in England, and stated that the jui^e^
had fortitude, fidelity, and independence sufficif-i
and reversed the outlawry. This case prove* 'W
reverse of the position intended ; it proves ihii
although the judges in England held their o£rf5
by the courtesv of Parliament, yet they had in-
tegrity and inaependence equal to the disch^^s?
of their duties, rrom which it must be io^errfd
that our judges, not holding their offices at the wtl
of the Legislature, are more independent aaimcre
capable of discharging their duties.
And. as a further proof of our destroying ibe
independence of the Judiciary, and stabbieg tbe
Constitution, the same gentleman informed u^
that by this means all Republics had been destroy-
ed ; that Greece had fell, Rome had fell, and tba:
Venice, and the Republic of Switzerland, hii
fallen. I expected that the honorable memU!
was about to show that those Republics had faHer
because they had written constitutions, rescix
certain powers in their Judiciary, and that ik«
Legislative branches of those Gk)vernment^ hxi
destroyed their independence. The bonorablt
gentleman says that we are the enemies of fif
Constitution, and that he and his honorable frier £^
would do anything to save it. The manner liar
those gentlemen formerly and at this time bar-
portrayed the Constitution, puts me in mind '^
Achilles the Grecian chief: tne Constitution, tkt
this hero, at some times was invulnerabSe ; itn5
adequate to every purpose ; it was broad, and ex-
tended its force against all opposition, like the berD
it nursed, and levelled armies, and now. like bio.
the only mortal part that the shaft of death raz
enter is at the heel. It is in the minor branch oe
873
HISTORY OF CONGRESS.
874
\f ARCH, 1802.
Judiciary System.
H. OP R.
the Executive, the Judiciary, and in the minor
branch of that branch, the sixteen judges.
A gentleman from Pennsylvania, and my col-
league from North Carolina, has compared this
tenure of the judges to a contract, and says that
.he same rule of justice should be applied to them
IS to individual contracts. I am not disposed to
contest this point. And what is the rule upon
contracts where work and labor is to be done 1
Suppose a firm of merchants employs a clerk to
ici as a clerk in their firm during good behaviour,
for which services said clerk had a covenant with
said firm by agreeing for a monthly payment of
I sum not to be diminished during good beha-
iriour ? Is the contract binding upon the firm, so
:hat they cannot dissolve it? Suppose said firm
dissolves, what becomes of the contract? Can
:he agent maintain an action in law or equitv for
;he recovery of moneys for services which he
lever did perform, or for services not wanted? I
relieve not, sir; and the principle holds good in all
:ontracts where services are to be rendered. If
inything occurs that renders the services unne*
;essary or improper, the contract is concluded, it
s at an end, a contrary principle would lead to
nany absurdities. A gentleman from Connecti-
cut has said that the words "during good beha-
riour" are so plain and easily understood, that a
ichool-boy would, without hesitation, answer that
t meant so long as he behaved well, that it meant
luring life, and woulcf not a school-boy also an-
wer that no person should be continued in service
onger than his services were wanted, and that as
ODD as the services could be dispensed with that
he person performing services s.hould be discharff-
!d, and, after the discnarge, would not the school-
)oy say that the payment should stop ? The gen-
leman has said we may not commit murder by
unning our sword through a man, but mayr pusn
I man against a sword. Is there any similarity
n this case, in discontinuing a man from service
vhose services are not wanted, in discontinuing
m office that is unnecessary to be kept up, and
iven expensive and injurious to the community,
md that of taking the life of a citizen ? I must
confess I see none. One being an act arising
rom just impressions of duty, the other an act of
ligh criminality. The same gentleman has said
hat we ought to be cautious in passing laws by con-
tractive right on the Constitution. This cau-
ion comes with a bad grace from that quarter,
las the honorable gentleman forgot the law passed
>y his support, where by a construction of guard-
Dg against the licentiousness of the press, they
)assed the Sedition act, contrary to tne express
vords of the Constitution ? These things are of
;o recent a date that they cannot be forgotten.
We have been too lon^ amused by sound, by dec-
arations from that side of the House, but it is
low too late for declarations to obtain credit.
?vhen contrary to experience. We have been told
)y a gentleman from Delaware that he wishes to
;upport the sovereignty and dienily of the United
States, and at the next breath ne tells us and tells
he world, that he has no confidence in the major-
ty of the Legislature, and that he has no confi-
dence in the Executive. Is this the means that
he employs to support the dignity of the United
States? He has also said that the assumption of
the State debts was necessary for the remunera-
tion of the war-worn soldiers; these were the
declarations by which this measure was carried.
But my -friends in the opposition then declared
that it would not have tnat efiect, that, on the
contrary, the soldiers that had performed the ser-
vices, and that the citizen that had advanced his
property for the public service, would not be remu*
nerated, but that the whole would be cast into the
hands of a few speculators, and that the public
debt would be greatly augmented. And has not
all this been realized to a greater extent than was
even apprehended by my friends ? The same ffen-
tieman has said, with one other gentleman from
Maryland, that the war in Europe, and the ex-
tent of the French arms, made it necessary to
augment and raise the additional army, or to put
It in the power of the President to do so. My
friends then thought, as they still think, that the
French, whatever intentions of hostility they bore
to tbis country, would not invade it ; that they
were so encompassed by the Powers of Europe,
the thing was impossibie. To these reasonings
my friends received in reply, that they were Jac-
obins, Democrats^ French partisans ; tnen was the
time of political intolerance. But, having carried
the army, more was necessary, the opposition must
not talk, or at least they must not write about it,
unless they had always le^al evidence in their
pocket : to justify the Sedition law, it was neces-
sary to put down free inquiry ; and, after all this,
we are still told all has been well conducted ; ana
we are further threatened with civil war, if we
strike down this institution, an^ recommended to
take care of our wives and children. We are threat-
ened with the bayonet. Are these gentlemen
prepared, like their famous leader and author of
the funding system at New York, to shed their
hearts' blood in the opposition ? I trust they are
not prepared — they have no army of dependants
to second them in a design of tnat kind. The
^ood sense of America has at length seen their pro-
jects, and cannot longer be imposed upon by them.
A gentleman from Maryland (Mr. Dennis)
begins his remarks by giving us the homage of
his esteem. I would ask the gentleman, is this an
indication of approbation or contempt? He dwells
much on the name of General Washington, and
says that no monuments are building for him. I
cannot conceive any relation that this has to the
present question. And he says that Mr. HamiltoOi
althouji^h he was the author of the funding sys-
tem, did not consider a national debt as a national
blessing, and, to prove it, reads a long report of
Secretary Hamilton to Congress.
It is true, in this report, there is no express
avowal of an opinion that a national debt would
be a national blessing ; nor is it reasonable to be-
lieve that this avowal would accompany an offi-
cial report. But we are to judge of the intentions
of men by their actions, more than by their dec-
larations— the actions on many measures adopted
by Grove rnment lead to the proof— and I think I
875
HISTORY OF CONGRESS.
H. OP R.
Judiciary System,
March. 1SC2.
have seen a publication, (as publications have
been admitted as evidence by gentlemen on the
other side) — which publication has been ever con-
sidered as the production of that flfentleman —
which went to prove that a national debt was a
oational blessing. The doctrine has been so well
understood in theory and practice, that I had
thought the principle had been settled. The gen-
tleman says that it was impossible to do justice in
the funding system ; this would be a good argu-
ment not to have touched it.
He says at the time the additional army was
raised France had forty thousand troops, and had
nothing to do, and she might have bent her course
this way. If this was true, France has one hun-
dred and fifty thousand troops at present, and less
to do; we therefore ought to oe raising armies.
He says our navy protected our trade. It may
be so, but was there a necessity to build the six
shius-of-t he-line, that could not in any short time
be Drought into action, at a time when we had to
borrow money at eight per cent. ? He says, our
side of the House never wished to pay the public
debt. This I deny ; my friends never wished un-
necessarily to augment the public debt by creat-
ing and keeping up useless institutions. But they
at all times, when a debt has been created, al-
though ever so improperly, have wished to extin-
guish it by actual payment; to prove this, exam-
me the records and journals of Congress, and the
votes will be there seen. The gentleman has said
much about our destroying the independence of
the Judiciary, and attempting to violate the Con-
stitution, in common with other gentlemen on that
side of the House, equally unjust and defama-
tory, for which no apology can be given unless it
be admitted to be ^e last convulsions of an expir-
ing party. Sir, as I am fully convinced that we
have a Constitutional right to pass the bill on
your table, and as I do believe that it is expedient
to pass it, and as I further believe that it does not
violate the independence uf the Judiciary; that if
they have a rig^ht to judge of the constitutionality
of law, they will continue unimpaired to have the
same right, and in every respect remain in their
Constitutional independence, I shall therefore vote
against the proposition of my colleague for strik-
ing out the first section of the bill.
Mr. Gregg. — Several days ago, Mr. Chairman,
I expressed an anxious wish that this question
might be decided, and assigned as a reason for my
anxiety, the length of time it had already occu-
pied^ and the belief I entertained, that if the dis-
cussion was continued any lonsrer, it must be by
the repetition of arguments we had already heard,
and by introducing extraneous matter^ which very
probaoly had better be kept out of view. I con-
fess that I have heard nothing since to convince
me, that the opinion I had then formed was incor-
rect. It is true, the argument has been conducted
with great ingenuity and address on both sides,
but it must be acknowledged, that there has been
much repetition, and many subjects brought into
view, which, as they have very little bearing on
the present question, had certainly better been left
untouched.
It has appeared to me, that a stranger comio;
into the House at some periuds of the dcUie.
would at once have concluded the subject of d.j-
cussion to be, whether the measures of theG .;•
ernment during the Administration preceding tl:f
present, tended to monarchy or aristocracy? A:
other times he would have apprehended iheqcfy
tion to be, whether the common law attache:::
the Constitution of the United States, and fare*
a part of it? t'rom the course of theargutnas
at other times, he would be inevitably ledtor:>
elude, that the main question to be decided ti*
how far the courts have a Constitutional i^'J
and power to declare laws passed byCoDgrRf
unconstitutional and void. These, to besorerr
interesting and important subjects, and we k^
had much useful information to aid usiofcrniog*
an opinion, should we even be called todecieoo
them, but they appear to me so entirely irtWTUt
to the subject immediately before the CotD:&:i'».
that I have regretted to hear them, thus iwiilfTt-
ally drawn into the present discussion. Rcta-
taining the opinion wnich I before expressed.!::
which I have now repeated, of the exhausted stsx
of the subject, it would certainly be improper j
me to detain the Committee by entering iDioJiry
into the argument. I assure the Commiiw j
have no such intention. My principal object h
rising is to correct some information wither:::'
a gentleman from South- Carolina (Mr. Rn
leoge) favored the Committee a few dapi:-
respecting an official character in Pennsyhaoi
the State from which I have the honor to ccci
as one of its Representatives. I would have d.:-"
thi^ at the time th€ information was given, ltfi>
not been prevented by the reluctance I al*^"
have felt at seeing a gentleman interrupted in:^
observations. Had it been done, then, the gee-
man from Maryland (Mr. Dennis) would pert*?
have spared the allusion made by him tothesiDC
person on Saturday.
A gentleman from Virginia, in speakin^ctj^^
subject of appointments to office, mentioned '^
a person, not only hostile to our indepenJ^^ce
during the Revolutionary war, but who hadt^fi
joined the British army,' and distinguished bj^
self as an active partisan in their service, ii»
been appointed to the important office of a ja-r^
by the late President. The gentleman from S.v:
Carolina, in .searching for an officer under the p'f'
sent Administration, supposed to have beenp*^
sessed of similar principles, during that inters!--
period in the afiairs of this country, as a ^'^-
to the appointment of the judge, travelled ib-^
Pennsylvania, and fixed on the collector cf 'if
internal revenue for the city and county of PfcLi'
delphia, in that State. He informed the Coin^ "
tee, that when the British army under Sir"
liam Howe, made its triumphal entry into P-'*'
delphia, that person was its conductor; that '•
manifestations of his joy on the occasion, her^'^
before with his head wreathed with laureU-
that he was afterwards pro.scribed for his contc-;
by an act of the Legislature of the State. TiJ
the person alluded to, with many others, did p^
cede the British army when it marched into Plii-
377
HISTORY OF CONGRESS.
878
VIarch, 1802.
Judiciary Systenu
H. OF R.
idelphia, exhibiting evident demoastratioDs of joy,
[ believe has never been contradicted. That he
mras proscribed by an act of the Legislature. I
3elieve is equally certain. But I never until now
leard. that he was the conductor of the army on
;hat occasion. I have always heard him spoken
)r as being too young to be entrusted with so im-
portant a commission. His youth, and his being
inder the direction of friends, who, on that occa-
sion, were supposed to have exercised a controlling
}ower over nim, pleaded so powerfully in his
iavor, that this political transgression was for-
given by his country, and the proscription re-
voked. I wish the gentleman had proceeded with
the history of this person. It would then have
ippeared to the Committee, that the war had not
ong terminated before he was brought into pub-
ic notice, and placed on the theatre of public life,
3y that very description of people who now arro-
rate to themselves the appellation of Federalists.
It would also have appeared, that shortly after the
establishment of the present Government, he was
ippointed Assistant Secretary of the Treasury by
Grenerai Washington, then President, and that
when that office was abolished, he was appointed
:o be Commissioner of the Revenue by General
Washington also. Yes. sir, he was appointed to
t)oth these important offices by General Wash-
ington. This consideration alone, it might have
3een supposed, would, in the opinion of gentle-
men, have been sufficient to justify the present
President in giving him the appointment he now
tiolds, had it been given by him ; but it is a subor-
linate office he holds; it does not come under the
mmediate notice of the President; it is within
:he gift of the Supervisor of the District.
Here. Mr. Chairman, I must beg leave to ob-
serve, and I think it will not be improper in this
place to take some notice of the clamor that has
been excited, and the charges that have been made
igainst the President for removing the late Su-
pervisor of that district, and appointing as his
successor the person who now holds the office. I
ba ve before me a newspaper containing a number
3f toasts given at an entertainment, on a late mem-
Drable occasion in this city, in one of which the
injury done the late Supervisor is represented to
be so great as to warrant a kind of appeal to the
people for obtaining him redress. I have seen, in
mother newspaper, (and newspaper information
IS become very fashionable on this occasion.) a
paragraph in these words: '* General Miller, the
' accomplished, the war-worn soldier, has been
' removed from the office of Supervisor of the
' District of Pennsylvania, to make room for one
' Muhlenberg, a Dutchman." Now, sir. what must
have been the object of the author? Most un-
doubtedly to impress the minds of strangers with
a belief inat the former was a man of distinguished
merit, and the latter, the reverse. In this, as in
other cases, it is fair and proper that the whole
truth should be declared. It is not pretended to
be denied, that the late Supervisor is a man of
merit. It would ill become any person at the
present day to attempt to divest him, or any of the
orave men to whose exertions our country is in-
debted for its independence, of the honors justly
acquired by their services during the Revolution-
ary war. That gentleman entered into the Army
very early in the war, and continued in service
until 1779 or 1780. He then retired, and was
shortly after appointed to a lucrative civil office
under the State, which he held till 1794, at which
time, I believe, he was made Supervisor of the
District.
Let us now, said Mr. G., inquire what are the
pretensions of his successor in office. His mili-
tary career also commenced with the Revolution,
nor did he lay down his sword until, at the con-
clusion of the war, the Armv was disbanded.
The importance of his services through that whole
period I have never heard questioned. If, there-
fore, being war-worn constitutes any just demand
on the Government for official remuneration, (and
I must declare I have always viewed it in that
light,) the person who now holds the office has a
superior claim, as having been longer in service
than his predecessor, and because, in the last years
of the war particularly, the pay of the officers
could not be considered an adequate compensa-
tion for their services.
Permit me, sir, whilst I am on the floor, to ad-
vert for a moment to an address from the bar of
Philadelphia to the Senate, on this subject, to
which frequent allusion has been had, and on
which great stress is laid in this discussion. As
the address is not before the House, I much (|ue8-
tion whether arguments drawn from it are strictly
in order. But if it even was on your table, I
would ask what influence should it have on the
decision of the present question? The respecta-
bility of the bar of Philadelphia is acknowledged
to be yery great. It is composed of men as emi-
nent for their professional abilities as they are dis-
tinguished for personal merit. I feel no disposi-
tion to detract from their reputation in either of
these respects, even was it in my power. But, sir, *
it is well known to every person living in Penn-
sylvania, that the lawyers of the whole State,
with few exceptions, whatever their professional
abilities and personal merit may be, have uni-
formly been advocates of that system of politics,
and all those measures which distinguished the
former administration of our Government. The
public debt, a large Army, an increased Navy, and
the whole catalogue of taxes, received their coun-
tenance and support, as contributing to the exten-
sion of Executive influence and power. Surely,
then, it cannot be accounted strange — nay, is it
not to be expected, that these men shoula rally
round the Judiciary, and endeavor, by adding to
its influence, to compensate for their loss of power
in the proposed reduction of some of the other
establishments?
With respect to the address itself, it may be
observed, that it c&utiously avoids giving any opin-
ion on the Constitutional power of Congress to
pass the bill on the table, and confines itself to a
simple statement of the expediency of the present
organization of the courts, as ascertained by the
practice of the gentlemen who have signed it.
Even as to the expediency of the system, I have
879
HISTORY OF CONGRESS.
g^i.
H. OP R.
Judiciary System.
March. M.
been informed that they were not unanimous, and
that a few, not inferior in talents, absolutely re-
fused signing. Had it touched the Constitutional
question, or contained even an implied doubt of
the Constitutional power of Congress to repeal
the laws to which it alluded. I feel myself war-
ranted in snying, that some at least whose names
are now in it, would have refused their signatures.
Indeed, I am inclined to think, that a res^ard for
consistency would prevent them, generally, from
giving their sanction to any instrument embracing
that principle, and this opinion I conceive will
fig[)pear to be sufficiently warranted by this consid-
eration.
In the State of Pennsylvania the judges hold
their commissions by the same tenure by which
the judges of the United States hold theirs. Dur-
ing good behaviour are the terms used in both
constitutions. The Judicary system, in Pennsyl-
vania, has been long thought to be imperfect and
defective. An attempt is now making to improve
it. I have this mornins seen a bill on the subject,
which, I understand, is likely to pass in the House
of Representatives! I believe that bill is sup-
ported by all the professional gentlemen who are
members of the House. I have not heard that
any of those who are not members are protesting
against it as being unconstitutional; and yet it
goes to abolish the offices, and of course to put
down more than a hundred judges, who are all
commissioned during good behaviour. If these
gentlemen believed that measure to be unconsti-
tutional, their patriotism surely would lead them
to protest against it. and to exert their influence
to prevent its passage. This, sir, it appears to me,
may be considered as pretty conclusive evidence,
that it is a received opinion Jn that State, not ob-
jected to even by proressional gentlemen, that it is
competent to the Legislature to abolish an office,
which on experience is found to be inexpedient and
^ unnecessary, even although the officer holding it is
commissioned during good behaviour ; and this is
conformable to the opinion of the chief executive
Magistrate of that State, expressed with reference
to this particular subject, in a letter to a friend,
which has been already stated by a gentleman
from Georgia. Unless the Legislature does pos-
sess this power, or if the doctrine of the inde-
pendence of the Judiciary should prevail to the
extent that has been contended for, it appears to
me, that what I have always considered as the
most important principle of the Constitution, is
destroyeo. Responsibility in public agents I have
always considered as the best^ the only security
the people have against imposition. While that
is preserved, they are in great danger ; destroy it,
and where is their security? If the judges even
of inferior courts are to be so independent, as that
their offices must be sacred, and beyond the reach
of the Legislature, and if tneir power in deciding
on the constitutionality of laws, is to be unlimited,
and without any qualification, the Legislature is
but a subordinate branch of the Government —
the Judiciary is paramount — the supreme power
is in their hands. Such a doctrine appears to me
repugnant to common sense, to the vital princi-
ples of our Government, and4o the plain and o>
vious meaning of the Constitutioo.
I must, Mr. Chairman, take thisopportunitTr
expressing the* regret with which 1 have heri
during the present discussion, the friends of :&b
bill branded with epithets and loaded witbchar^
which, to say no worse of them, are cenii:!?
highly improper in this place. They haTebtc
charged with being actuated by motives hostilei.
the Constitution and Government of their co£>
try. They have been represented as being Wx
by a principle of innovation, and a destructive
spirit, which after deluging^ Europe in blood d
now exerting its baneful influence over tko.
They have been called tools of the Prfeidfs:
mere automatons, prepared to execute all hisoiaa*
dates. They have been held up as disorgaD.2n
jacobins, and infidels — and all this is dooe ciiff
the privilege of freedom of debate. Tbbi»ri]
not freedom of debate. It is a gross abase of thit
privilege. It is licentiousness of debate, ui ii
continued to be practised, its inevitable cc3!^
quence will be, to sink the repatation of vJa
House in the estimation of every wise and ^::<
man. I have lamented exceedingly, that any ge^
tleman on this side of the House could hart
thought himself justifiable in descending to nub
any reply to such insinuations.
I was, Mr. Chairman, a member of Congressii
the time the system was adopted, whicbiti^^^^
object of the present bill to repeal. 1 was titi
opposed to it. I did not think so extensive ib G^
ganization of the courts necessary. The expecs
created by it I considered a serious efil. T:f
courts, under the old system, I believed lobecco*
petent to the discharge of all the business vi^
would be likely to come under their cosnizst^
for a long time. The document which has b«
laid before us by the President, containing a 1^
of all the causes which have been entered. «*
which yet remain undecided in the courts of *
United States, has fully confirmed me that I "^
not mistaken in that opinion. The numberiifff-
in stated even falls short of what I soppi^^ ^^
might be. Believing, therefore, the present syv
tem to be unnecessarily extensive, viewing iis^^^
pense as oppressive, seeing no article or s^ctioa Ji
the Constitution, which, either in it? plain l«<-*^
or by any fair construction, prohibits toiheLff--
lature the power of repealing it, and considem:
the doctrine of the independence of the Judiciarf
in the extent contended for, as not only incomp;
ible with, but as repugnant to the vital princijK
of the Constitution, I shall give my decided k^
in favor of the bill, and against the present tnotis
for striking out the first section.
Mr. Hastings.— I rise to express my f-^
ments upon the bill now under consideration a
the Committee— not that I expect to add m»:f
new reasons against the principles of the bill k
those that have already been offered by genticiD*
who have preceded me in the discussion; t'^
when the Constitution of our country, the art -
our political safety, is in danger ; when, in o!
apprehension, it is threatened with a blow tw
may prove fatal to its existence; when wec^js*
881
HISTORY OF CONGRIJSS.
882
March, 1802.
Jvtdiciary System,
H. OF R .
template that a dissolution of the UDion may be
the final result, our fears are excited, the imagna-
tioD is alarmed, and ever^ exertion ought to be
made to avert the impending evil.
Under our present Constitution of Government
(which I believe to be the best and most perfect in
the world) the American people have been happy
beyond all former example, and whether our na-
tional prosperity and union shall be preserved or
destroyed, depends alone upon ourselves, upon
the preservation of the existing Constitution.
The subject now under consideration of the
Committee involves in it an important Constitu-
tioaal question : Shall the independence of our
Federal Judiciary be impaired or destroyed? shall
it be maintained in that state of inviolability in
which the people, the creators of the Constitution,
placed it, or snail the independence of this im*
portjint branch of our Government be prostrated
at the feet of the National Legislature?
I have always believed, that for a Government
tube free, it must have three separate, distinct,
and, as far as possible, independent branches — the
Legislative, Executive, and Judicial; that these
three branches, though co-operating with, ought
mutually to be checks upon each other, and that
whenever one of those branches assumes the pow-
ers constitutionally belonging to the other, there
is an end to the freedom and security of that Gov-
ernment ; and I have uniformly believed that it
was the sense of the American people, that the
powers of their Government should be thus ar-
ranged and distributed. It is possible that a Le-
gislature may sometimes be under the influence
of popular passions, and that the Executive may
not be wholly free from them ; to gratify popular
clamor, laws may be enacted unconstitutional and
oppressive. What power, then, to check the Le-
^slature in their wild career, but an upright and
firm Judiciary, that is not dependent upon popu-
lar will ? Judges who are independent, holding
their offices during good behaviour, and who, un-
influenced by popular or party views, will operate
as a check upon those, who, in factious times, may
attempt to break down the barriers of the Consti-
tution, and by the exercise of this Constitutional
power, preserve the liberty, freedom, and inde-
pendence of their Government and country?
I believe it is often true that there is a strong
disposition in Legislative bodies to encroach upon
the other branches of the Government, because
perhaps they are generally the weaker branches,
if we turn our attention to England, we shall dis-
cover this spirit displayed in the conduct of the
British Parliament during the reign of the elder
Charles. He was an arbitrary Prince; he levied
money from his subjects without the consent of
Parliament, and against law. The Parliament
resisted his claims, and he surrendered them ; but
the Parliament was not satisfied with reducing
the royal prerogative within reasonable and Con-
stitutional bounds. They stripped the King of all
his Executive powers, and then sent him to the
scafibld. The Parliament then assumed and exer-
cised all the Legislative and Executive powers of
the Qorernment. Confusion ensued, and order
was not restored until Oliver Cromwell, with
military force, and without the consent of the
people, forcibly seized upon the Government.
If we look to France, we may there behold the
same encroaching spirit, which discovered itself
and prevailed in the National Convention. The
Executive of the nation, deprived of all his pow-
ers and prerogatives, which were usurped and
exercised by the Convention, who tried, con-
demned, and doomed the King to the guillotine.
The same Convention, afterwards exercising all
the powers of Government, detached judges and
commissioners from their own body into every
part of the country to inflict revolutionary ven-
geance upon the suspected enemies of the Revolu-
tion ; and thousands suffered under the arbitrary
decrees and sentences of those revolutionary
jud^. I hope, sir, that the same encroaching
spirit upon the Constitutional independence of our
national Judiciary has not entered this House ;
but what has happened once may happen again.
The opinion and practice in those States that
have provided by their constitutions of govern-
ment that the judges shall hold their offices dur-
ing good behaviour, (which is the case, I believe,
with nine or ten States in the Union.) must be a
good rule by which to ascertain the understand-
ing of the people respecting this tenure of office.
In Massachusetts the judges hold their offices
during good behaviour. In that State, I appre-
hend, the people never supposed that their judges
were liable to be removed from office but for mis-
behaviour; and I have believed this to have been
the prevailing opinion in all the other States
where good behaviour is the tenure of the judge's
office. Upon this point I cannot entertain a doubt;
the meaning of the words in our national Consti-
tution, "that the judges of both the supreme and
inferior courts shall hold their offices during ^ood
behaviour," is clear, precise, certain, and free from
all ambiguity ; it requires no nice metaphysical
investigation or distinctions to ascertain their true
intent and meaning. But to be a little more par-
ticular upon this point, the Judicial power is one
of three separate branches of our Government;
and it b as essential to the happiness and security
of the people that the independence of this branch
of their Government should be preserved as entire
as the other two branches. The American peo-
ple have declared, in their Constitution, that *' the
^judicial power of the United States shall be
' vested in one Supreme Court, and in such infe-
* rior courts as the Congress may from time to time
■ ordain and establish." Here the word s?iail ap-
plies as well to the inferior courts as to the Su-
preme Court; and is as imperative to the one
court as to the other court. I apprehend the true
meaning to be this, that there shall be a Supreme
Court, and there shaU be inferior courts, both of
which shaU be ordained and established by Con-
gress: the Constitutional injunction upon Con-
gress to establish courts being as strong and direct
in the one case as in the other; and the Constitu-
tion contemplates the constituting of courts infe-
rior to the Supreme Court, having appellate juris-
diction. Then follows, another part of the sec-
883
HISTORY OF CONGRESS.
851
H. or R.
Judiciary System,
Mabch.
lion. " ihe judges of both the supreme and inferior
courts shall hold their offices during good beha-
viour." Here the expression that ** the judges of
both the supreme and inferior courts shall hold
their offices during good behaviour," is as impera-
tive as the former part of the section, that the
judicial power shall be vested in a Supreme Court
&c. If it is a Constitutional command upon the
Legislature that they shall ordain and establish a
Supreme Court, and also inferior courts, the com-
mand is as positive that the judges of both the
courts shall hold their offices during good beha-
yiour; now the advocates for the repeal of the
law constituting and establishing the present cir-
cuit courts, say that the Supreme Court being a
Constitutional court, cannot be affected by the
Legislature ; but I see no reason why you cannot
as easily get rid of the judges of your Supreme
Court, by repealing the law organizing that court,
as you can remove the judges of your circuit
courts by repealing the law that establishes those
courts; the principle and process is the same; for
both courts equally depend upon a Legislative act
to constitute and ordain them ; and if the princi-
ple is once adopted, why not remove your Presi-
dent from office? For can there be a President
constitutionally elected but by the intervention of
the Legislature 1 You make a law determining
the time of choosing the electors of President and
Vice President, and the day on which the electors
shall give their votes. You ordain and establish
courts by law. The President is one Constitu-
tional branch of the Government; the judges also
are another Constitutional branch of the Govern-
ment. The President shall hold his office during
the term of four years; the judges shall hold
their offices during good behaviour. If, by repeal-
ing the law constituting the court, you can dis-
place your judges, why not also, by a cunning
decree, remove the President by repealing the
law determining the time for choosing the electors
of President ? Convinced, therefore, from the best
attention I have been able to give the subject, that
if the bill before the Committee is finally passed,
it will be an infraction of the Constitution, I shall
only add, that two or three reasons alone are satis-
factory to my mind, why (if it were Constitu-
tional) it still would be inexpedient to abolish the
present system of circuit courts, and restore the
old one. First, under the old system the manifest
impropriety and absurdity of a judge's sitting and
deciding causes in an inferior court, and upon an
appeal from his decision to the Supreme Court,
the same judge sitting and deciding upon the
same cause in that court. Secondly, the great
inconvenience and difficulty that the judges of
your Supreme Court, under the old system, were
subjected to, being obliged to travel from one end
of the United Slates to the other to hold circuit
courts; their long absence from their families and
studies ; the failure of holding courts, prevented
by sickness and a variety of accidents; and the
great expense to suitors consequent thereon. By
the present system these evils and defects so
much complamed of under the old system are
remedied. I
But, in the course of the discassion. aooiuir
doctrine has been advanced by the advocates:/
the bill, in my opinion dangerous to the n^::
and liberties of the people, and wholly destruciitf
of the Judiciary ; I mean, that the Judiciarynik
check upon the Legislature ; that the Legbiaicjt
expresses the public will; that the public ti
thus expressed, is to be carried into effect by;:^
Judiciary, however the law may be indire*!!)^
olationvf the Constitution ; and we are told:,
an honorable member of the Committee, thai:
we pass this bill, and thereby violate iheCo&sttr
tion, it will only be for two years ; in two yerj
the people may send other Represeatatirei i^
restore the law ; and this, it is said, is theeorrRt-
ive principle in the Constitution. BotifiliisJK-
trine be true, if the Judiciary power has oo Cos-
stitutional check upon the acts and doiD|sc(£ie
Legislature, Congress may pass an ex poikto
law by which I may be deprived of myesaieoi
life, before this correcting principle can vp^i
and have effect. We are also told that, by il>>
ishing the present circuit courts, we shall ^:rJ
of the expense of supporting sixteen circuit jui!^
an expense to the United States of about mrt'
thousand dollars a year; but I ask, what i:ii'
expense, which one of the advocates lor theit^*
has said is paltry, compared to the adracta|ti£
a more prompt administration of justice thu^
the case under the old system ? Gemlemea id<^
talk about savingexpense; I am disposed togo>!i£
as they will, in saving the public money in e^fl'
proper way ; but I never can consent loauiisi
expanse, at the expense of the Constituiioa. i
.is said, also, that the business in the circuitccro
has diminished, and this is urged asaDotheiro-
son for abolishing these courts; it appears'^
sixteen hundred and thirty-five suits were depeJ*
ing in the six circuit courts; this number v!^
average about two hundred and seventy-two sci2
to each of the courts ; this shows pretty codcIb-
sively, that there is business sufficient for t^'^
courts to do ; and the less business the less ^»*F-
and the more prompt will be theadministnt:e&'^
justice; besides^ is not this country rapidly ioct«»-*-
ing in population and wealth? Contrary '»c t^
experience, therefore, are we to conclude ibat li-
gation and suits will decrease in a ratio witi^>^
increase of our population and wealth?
Mr. Chairman, an honorable member from Vi']
ginia has told us that the judges harecliici^^
powers, which, I understand that genllemsii >^
mean, do not belong to them ; and hesays.ih^i ;
was the State of Massachusetts which was tr^
attempted to be brought to the feel of Judicial ^^
icy ; I would ask that, when the judges fooDti"
the Constitution, that a State was liable ts /
sued, and therefore sustained the action of an:9-
dividual against the State, if this was anuociS^
stitutional usurpation of power? And are (^'
judges for this to be censured and charged t^
claiming power, which did not Consiiiuiiona-"
belong to them to exercise ? Upon the priDCif-^
of justice, I apprehend, no sufficient reason f*^
be given, why a State should not be as coffift-
lable to pay her debts, as an individual; orisj^
585
HISTORY OF CONGRESS.
886
klARCH. 1802.
Judiciary System.
H. OF R<
ice and moral obligation dififerent, as applied to a
^tateor an individual?
The same honorable gentleman has said, that
ve may now Indulge the hope, that our pulpits
vill not much longer be converted into political
brums. How this may be in Virginia 1 know
lot j but, sir, as it respects the clergy in New
jingland, it is not true; we are blessed therewith
I learned, pious, and patriotic clergy ; who. from
heir good conduct, have acquired, and deservedly
)ossess, the confidence of the people ; a clergy, sir,
hat. during the Revolutionary war, were the zeal-
)us supporters of the rights and liberties of their
nvaded country ; a clergy that, by their influence
n their parishes, by animating and encouraging
he people, in the most gloomy periods of that
war. to persevere in the prosecution of it, were as
iseful, almost, as an army in the field ; and who
nade as great sacrifices in the common cause, by
-eceiving their small salaries in a depreciated pa-
jer currency, as any other class of people in the
jountry. Our clergy, too, like our judges, hold
leither the sword nor the purse; like our federal
judges, too, their tenure of office is, certainly, dur-
ng good behaviour; for misbehaviour only can
;hey be removed from office. Our clergy are the
idvocates of civil and religious liberty ; they are
the friends and patrons of order and good govern-
ment. We consider them, in New England, to be
i useful and invaluable class of citizens; we wish
not to part with them, nor to have their respecta-
bility and worth lessened by groundless calumny
3r outras^eous abuse.
Mr. Chairman, an honorable member from Ma-
ryland has given the Committee a Ions disserta-
tion upon common law, and read a number of pas-
sages from Judge Blackstone's Commentaries, with
% view, I conceive, to convince the Committee
that our federal courts have no Constitutional
right to use and exercise common law powers ; if
the gentleman had turned his attention to the
67th and 68th pa^es of the first volume of the
same author, I thmk his difficulties and doubts,
upon this subject, must have been, in a great
measure, removed. That correct writer there,
treating of the common law of England, says :
" This unwritten or common law is properly distin-
guished into three kinds :
" 1. General customs, which are the univArsal rale
of the whole Kingdom, and form the common law, in
its stricter and more usual signification.
<* 2. Particular customs ; which, for the most part,
afiect dnly the inhabitants of particular districts.
*' 3. Certain particular laws, which, by custom, are
adopted and used by some particular courts, of pretty
general and extensiye jurisdiction. As to general cus-
toms or common law, properly so called, this is that
law by which proceedings and determinations in the
King's ordinary court of justice are guided and di-
rected. This, for the most part, settles the course in
which lands descend by inheritance ; the manner and
form of acquiring and transferring property ; the so-
lemnities and obligations of contract ; the rules of ex-
pounding wills, deeds, and acts of Parliament ; the re
spective remedies of civil injuries ; the several species of
temporal offences, with the manner and degree of pun-
ishment ; and an infinite number of minuter particu-
lars, which diffused themselves as extensively as the
ordinary distribution of common justice requires."
It was so much of the common law of England,
of the first description, that our ancestors brought
with them and adopted in this country, as was
applicable to their situation and circumstances ;
that part of the general common law of England,
which the English people have always held dear,
and claimed as their birth-right; upon which de^
pends a great proportion of their rights and liber-
ties ; and against which no complaints have been
made by the people in England. This important
and beneficial part of the common law of England
was adopted by the first English settlers in this
country; by them it was nourished and preserved,
and transmitted to their posterity ; under it we
have prospered ; it enters into all our proceedings;
a principal part of our rules of evidence are de-
rived from It; and it is to the common law we
must look for the origin of the invaluable right
of trial by jury. Take away the common law from
your courts of law, as usual in this country, and
your courts cannot proceed a step. The common
law doctrine of contempts of courts in England,
and the common law punishment that the offender
should lose his right hand for certain contempts,
never was considered, used, or claimed to be used,
as law by the courts in this country.
The same honorable sentleman has said, that
we ought to go back to the commencement of our
Revolution for the origin of parties in this coun-
try— Whigs and Tories. I believe, sir, that the
party distinction of Whig and Tory, ceased, pret-
ty much, with our Revolutionary war ; upon the
Promulgation of the present Constitution, a party,
believe, in every State opposed its adoption; and
was it not this same party that, for twelve years,
opposed all the most important measures of the
Federal administration ? Was it not this party
that assailed, with every species of calumny and
abuse, the illustrious Washington, for issuing,
at the commencement of the late European war.
a proclatnation of neutrality to this country 1
Was it not this same party that formed and in-
stituted Democratic societies throughout the
Union, to overawe and control the constituted
authorities of our Government? Was it not the
spirit of this party that excited two insurrections
in a part of our country? And had not the spirit
of this party been checked, it would, most undoubt-
edly, have involved this country in a war with a
powerful foreign nation.
The same honorable member has told us, too,
that, if the circuit courts are abolished, still the
Federal party will have more than their propor-
tion of the loaves and fishes; and he thinks his
Sarty is entitled to a share of them ; that is can-
id and sincere — was it, then, for the loaves and
fishes that the honorable gentleman and his friends
contended for twelve years? I believe the hon-
orable trenlleman ; the loaves and fishes have been
taken from the meritorious — from the war-worn
soldier — from those against whom no complaint
of misconduct in office was ever made, and given
to the friends and favorites of the present Chief
Magistrate. According to the principles of our
887
HISTORY OF CONGRESS.
88>
H. OP R.
Judiciary System,
March, W^.
Constitution, these officers, like all other officers
of our Government, are the agents of the people,
made and created for the people's benefit ; and
while they are conducted properly and to the sat-
isfaction of the people, I cannot discover either
the justice, propriety, or regard to the wishes and
interest of the people in the Executive, to remove
them from office.
Mr. Chairman, I will forbear saying anything
more; I have already consumed more time than I
intended. « I can only express a hope, that the bill
before the Committee will not be finally passed
into a law.
Mr. Hastings closed his remarks at four o'clock,
when Mr. Rutledge moved, that the Committee
should rise : he was supported by Mr. Griswold.
The motion was opposed by Messrs. Newton,
S. Smith, and Mitchell.
The question for the rising of the Committee
was lost — yeas 31, nays 52.
Mr. Dana rose and adverted to some of the ob-
servations which had been made respecting the
influence of a gentleman from Virginia. He was
called to order by Mr. Giles.
The Chairman, Mr. John C. Smith, said, that
observations tending to show that any one gentle-
man on the floor possessed an undue influence in
the House, could not be in order. He said he
would entreat his honorable colleague, notwith-
standing the wide range taken by other gentlemen
in the course of the debate, to aostain as much as
possible from all personal allusions and irritating
expressions.
Mr. Dana. — Mr. Chairman, I was disposed to
do justice to certain members of the House be-
tween whom and myself there might be supposed
to exist some of those differences oi opinion which
have been styled unessential. It was my inten-
tion to vindicate them from the imputation of be-
in^ tinder the influence of the gentleman from
Virginia. This was very different from what he
probably imagined at the time of calling me to
order. But it shall now be waived. The recom-
mendation from the Chair is entitled to respect-
ful attention.
It is with deep regret, sir, that I have seen the
present measure pushed forward upon this House.
Yet I will acknowledge that, since the commence-
ment of the main debate. I have experienced a
peculiar satisfaction in witnessing the disposition
to allow so fair an opportunity for discussion. It
is like the sensation which accompanies the return
of health, after having suffered severely from the
violence of disease.
Whatever difference of political sentiment may
exist among us, all will agree, I trust, in its being
to the common reputation of gentlemen, that, in
the present instance, the deliberations have been
conducted with such impressive order. It may be
further renaarked, as a source of grateful reflection,
that, on this momentous subject, we have not been
addressed as if the eloquence of avarice were the
only eloquence becoming the American Congress.
In the course of debate, indeed, there has been
some notice of the expense of the Judicial estab-
lishment, as organized by one of the acts passed at I
the last session ; but this has not, to my reco! >(
tion, been insisted on. in this House, as tbepr;>
cipal motive for adopting the bill on yourub.e.
On the contrary, one of the zealous adrocattv:
the bill (Mr. Randolph) has spoken of the ex-
pense as being a paltry sum, and disclaimed tiit
being actuated by this consideratiou.
Such a frank declaration, on his part, wisaja
honorable and proper. For what is the addiim
expense that must ultimatelv be incurred forib;
support of the Judicial estanlishment, accoriii?
to tne principles of the act now proposed (o \x:t
pealed ? Permit me, sir, to state it disiinctlr
The act in question is, " An act to provide far
the more convenient organization of thecoanscf
the United States;'' which was approved oo tit
13th of February. 1801. By that act. sii vic'Ji
were established ; five for the Atlantic Saie^jcd
a sixth for Kentucky, Tennessee, and iheDk:.c:
of Ohio.
To each of the five first circuits, thrttwrait
judges were assigned, and an annual salanutiw:
thousand dollars was allowed to each judge. I:
the sixth circuit, the judicial duties were lobe
performed by a circuit jud^e, with theassisULte
of the district iudges of Kentucky and Teaw-
see. An annual salary of fifteen hundred do. in
was allowed to the circuit jud^e ; and the ts.
d istrict judges were each to receive the same sci
By this establishment, the district judge of K.:-
tucky became entitled to five hundred dollars »:•
nually, in addition to his former salary; aoii^
district judge of Tennessee, to seven hundrr.
dollars.
According to this statement, there are for fiTcej-
cuits, the salaries of fifteen judges, at twci i-
sand dollars - - - - S3t •'
For the sixth circuit, the salary of one
circuit judge - - - - l>
The additional sums allowed to the two
district judges - - - - 1-
The amount of the whole for a year, is S3i*"
It is to be remembered, however^ tbat.af(er::r
oflfice of one of the Associate Justices of ihf 5-
preme Court shall become vacant, by resigBa:i:
death, or Constitutional removal, the racaoai
not to be supplied by a new appointment; baii^
court is thereafter to consist oi no more than tT'
justices; that is, of one Chief Justice and fturA:
sociate Justices. This is the purport of the vs.
section of the act. All the justices hanogl<«^
duly appointed, and having accepted their cx-
missions, were entitled to their oftcessolos2|-
they should behave well. As none of them cs-
Constitutionally be divested of office by aoa'':'
Congress, the court must continue to consi^tof^-
justices, until one of them ceases to hold hi-ofii.'
in which event, the office, and with it. lhe^a^i?
can rightfully be discontinued. AfteraCon>--
tional vacancy shall exist, this part of the act n:i'
have effect; and there will then be a reducu:
three thousand five hundred dollars for thesi^''
of one Associate Justice.
889
HISTORY OF CONGRESS.
890
March, 1802.
Jtidiciary System.
H. OF R.
The salaries of the judges in the respec-
tive circuits being therefore stated at - ^32,700
Deduct the allowance for one associate
justiceof the Supreme Court - - 3,500
And the difference being - - - ^9,200
is the additional expense to be ultimately incur-
red for the support of the Judicial establishment.
This is the clear result of the whole. It has now
been stated particularly, that the truth might be
precisely ascertained on this point.
An -expense of twenty-nine thousand two hun-
dred dollars annually, it will be readily acknow-
ledged, might be considered as a large sum, if it
were to be paid by an individual in this country.
But it should be kept in mind that this expense is
for a public establishment interesting to the whole
people of the United States. It is to be paid by a
nation — "a rising nation spread over a wide and
i fruitful land, traversing all the seas with the rich
j productions of their industry, advancing rapidly
' to destinies beyond the reacn of mortal eye.*'
If you compare this with your permanent ex-
penditures as estimated by the present Secretary
of the Treasury, vou will find it is not the one
hundredth part or the amount to be paid for the
current service of the year, even if you exclude
all the payments on account of the public debt.
It is not the third part of what is estimated as
necessary for maintaining one of your frigates.
If you compare the expense with the means of
paying it, you will find the whole sum for the cir-
cuit judges of the fourth circuit does not amount
to the duties payable on seven hundred coaches,
chariots, post-chariots, post-chaises, phaetons, and
coachees owned in Virginia. That State, it is to
be remembered, forms a part of the fourth circuit;
and on examining the Treasury documents laid
before Congress, you will find, that during the
year 1800, there were in Virginia seven hundred
and nine pleasurable carriages, such as I have
just mentioned ; besides upwards of three hundred
other four-wheel carriages paying inferior rates of
duty.
Ii you compare the additional expense, which
has been slated, with the population of the United
States, and apportion it accordingly, you will find
it to be but very little more than naif a cent for
each person.
It would be a national reproach, it would be an
infamy to the American name, if the consideration
of such an expense could excite the solicitude
which has been manifested respecting the question
now in debate. The expense is not. cannot be the
true cause of what has heen witnessed on this sub-
ject. Considerations of a different nature, such
as appeal more eloquently to the passions, must
have operated to produce the effect. You may
iorm some judgment of thepni, from what was said
by a gentleman from Virginia (Mr. QiLEa) when
he referred to the journals of the last session, and
spoke about opposing the public will.
But before replying to tnat part of his observa-
tions, I beg liberty to advert to what has been
said respecting the character of officers who have
been dismissed since the 4th of March. It might
have been hoped that it would be sufficient for
gentlemen to be in possession of power, without
attempting to deprive those whom they have
driven Irom office of their well earned reputation.
Are the persons now in power sensible of a de-
ficiency of their own stock? And do they expect
fb supply it by this species of plunder?
A gentleman from Maryland (Mr. S. Smith)
has made some observations conveying a general
allusion to negligencies and delinquencies in office;
but he did not profess to apply the allusion to all
the gentlemen who have been dismissed. If I did
not misunderstand him, he would admit, that there
were some worthy men among them. I regret
that the gentleman from Maryland is not now in
his place. If he were present, I am persuaded he
would not wish that his observations should be left
so as to be construed to the injury of meritorious
officers. Lest they should be thus misconstrued
with reference to the State from which I am a rep-
resentative, I could have wished to inquire wheth-
er he would be understood as imputing any mis-
conduct to the gentlemen who have been dis-
missed in Connecticut.
It is well known that it has been the Executive
pleasure to dismiss a supervisor of the revenue for
Connecticut, and two collectors of the customs.
The gentleman from Maryland, I firmly persuade
myself, could not intend to accuse them. I know
them personally. They are men of worth. I am
confident no gentleman who knows the truth and
respects it, will affirm, that either of those officers
was incompetent to his office, or inattentive to his
duty, or unfaithful to the Constitution. Nor can
it, with a color of justice, be pretended, that they
were hostile to our Jle volution. They all gave
decisive proofs of their attachment to it. No anti-
revolutionary adherence to our enemies can, with
truth, be charged against them ; and their official
integrity is irreproachable. If criminality is to be
imputed to them it must be for a new species of
crime ; they hare been guilty of obeying the laws
of their country.
Was it a reason for their dismission, that some
of the persons high in office did not expect them
to be so devoted to particular views as was wished ?
Whatever it may have been, I will not, in this
Elace, imitate gentlemen on the other side who
ave so freely called in question the characters of
persons differing from themselves in political opin*
ions. Nor willl here undertake to draw a com-
parison between the officers who have been dis-
missed and those who have been appointed to their
places. I waive any general investigation of the
characters of men recently^ placed in office. It
might occupy too much time, especially at this
late hour. I quit the topic with a general remark:
gentlemen should remember their glass house is
not a fortress.
After this vindication of meritorious men who
have been removed from office, I will now attend
more particularly to some observations of the gen-
tleman from Virginia. He has spoken of the ju-
dicial act of the 13th of February, 1801, as if the
passage of it had been attended with improper
circumstances, and thence has attempted to de-
891
HISTORY OF CONGRESS.
89:
H. OP R.
Judiciary System,
Mabch. h-J2
duce the ioference that it oug'it to be repealed.
He read part of the Journal of the last session, and
charged certain members of the House with hav-
ing been engaged in opposing the public will at
the time when the act was approved. The Jour-
nal shows, that on the 13th of February, eighteen
hundred and one, the representatives, voting bf
States, proceeded to the twenty-ninth ballot for
President, and the result was the same as had ta-
ken place before; the votes of eight States given
for Thomas Jefferson ; the votes of six States for
Aaron Burr ; and the votes of two Slates divided.
Much has been said on this topic, which has at
length been brought forward as a public charge
by the gentleman from Virginia. It is now time
that it should be examined.
According to the principles of our Government,
the public will, when explicitly ascertained by an
authentic act. is the law of the land, and must be
obeyed. Of this there can be no doubt ; it is be-
yond all question. But this public will is not
merely the will of part of the community, a sec-
tion of the people ; it is the will of the great body
of American citizens. The highest and most sol-
emn expression of the public will in this country
is the Constitution of the United States. This was
agreed to by the General Convention ; was trans-
mitted to the Legislatures of the several States by
the unanimous resolution of Congress under the
Confederation ; was recommended by all those
Legislatures, when they passed laws for submit-
ting it to conventions for their ratification, and
was finally ratified by the conventions of all the
Slates in the Union. It was thus established by
the general consent. In this we should acknow-
ledge the hiffh authority of the public will.
There is. however, a misfortune which attends
the argumentation of some gentlemen. They sub-
stitute a part for the whole ; and would confound
the will of a certain portion of the people, how-
ever vaguely expressed, with the will of the whole
public body as explicitly manifested by an au-
thentic act.
What manifestation was there of the public
will relative to the late election of a President of
the United States? The only authentic evidence
of the public will on this subject proved, that
Thomas Jefferson, of Virginia, and Aaron Burr, of
New York, were equally the objects of approba-
tion. The maiority of the electors had gi ven them
an equal number of votes. What then was the
difference of risht between them? Was it, that
one of the candidates was a Virginian ? Was it
that the members of Congress were assembled on
the banks of the Potomac, with Virginia in view
on the other side? Must it be acknowledged as
the prerogative of that State to impose a Chief
Magistrate on the Union ? Or was there a differ-
ence of right, because Virginia, with its extent and
population, could make more clamor than any
other State ? The noise of so great a State may
sometimes seem loud enough for the voice of the
people of the United States. And are they, there-
fore, in this House to be confounded with each
other? If 80, the observations about the public
will, of which we have lately heard so much from
a certain quarter, must be understood to meas [i-
will of Virginia ; and we may thus judge of ii:
argumeniation when gentlemeD from that S*:-
are speaking of the respect due to the public w:^
Two persons were presented, in Con»(itu'J:LL
form, to the House ot Representatives, as he:i^
equally candidates for the office of President: ::-
from Virginia and the other from New Yti
When they were so presented, the choice betvm
the two candidates was deyoived on the Rep.T-
sentatives. by the Const iiutioa of the LV^.
States. After matureljr considering the qi]e>:<::
it was for them, as ultimate electors, to roie «:
they judged to be most for the public weliire
They voted by States, as required by the Cj3:2-
tution. And are gentlemen to be here accoaed
for exercising the Constitutional right ofeiecixi
according to the cimviction of their own jci^-
ments? When called upon, under theCcusiiui-
tion, to elect one of the two candidates, wtiet::^
not bound, by the nature of their duty, to s>^.
their votes according as the one or the other w%
by them judged to be more or less preferal^'
Upon what principle can gentlemen beaccus^lv
hostility to the interest of the people, betic^:
they did not think proper to elect the caodics't
from Virginia ? Are our affairs already redc::C
to such a situation that it is to be charged as .
public offence, if anv member of this Huu^e ^>
tailed to vote for a Virginian to be the Pre^it:
of the United States?
It was the Constitutional right of members :'
this House, in deciding between the two ca:.i-
dates, to give their ballots for the one whom ih:'.
believed to be superior in practical capacity ^::
administering the Government — one wbom dfi
believed to be not hostile to the cummercial i:-
terests of the country, and not disposed to >:>
ject the Union to the domination of a panicoj:
State, whatever might be its lordly pretensioo>.:
consequence of extent of territory or aniiqa.t]r c-i
dominion.
As the gentleman from Yirfi^inia has ihoQ^i
proper to speak of events which took place awx
the time of passing the act in question, allow mt
sir, to mention one circumstance, of which htht
sai(l nothing. The act, as finally enrolled, vr
signed bv the Speaker of the House of Reprt>£i
atives after the balloting for a President had cl:i
menced; and the Clerk carried it to the c::t-
House for the signature of their President. T:-
candidate from Virginia was then in the Chai: •
the Senate. The Clerk of this House, on i'^
presenting himself, as was customary, at the c?.
of the Senate Chamber, was not admitted. T:
situation came to the knowledge of a Senator. &£.
was communicated to the Senate. After ::
sense of that body was found to be for his adc -
sion, the door was opened, and the Clerk was 2.
mitted to deliver his message, and present the «:
rolled bill for signature. It was then signed ^
the President of the Senate.
What should be thought of this, as taken .i
connexion with the fate of the act and pend^'oc;
of the Presidential election? Was it a circc^-
stance which must ever be remembered
I -
893
HISTORY OF CONGRESS.
894
March, 1802.
Judiciary System,
H. OP R.
mortification, and which therefore will never be
forgiven ?
To give a further color to the suggestion that
the passage of the act was attended with improper
circumstances, the attempt has been made to im-
press an idea that it was adopted without mature
deliberation, and hurried through its different
stages in a reprehensible manner. If we are not
willing to be misled by pretext, let us examine
what was the fact.
A recurrence to the Journals of the House will
prove that the subject of the Judicial establish-
ment was recommended by the President of the
United States to the attention of Congress at
two successive sessions. In his communication
at the opening of the first session of the sixth Con-
fess, he recommended the subject in the folio w-
mg terms :
** To give doe efieet to the civil administration of
GoTemment, and to insure a just execution of the laws,
a revision and amendment of the Judiciary system is
indispensably necessary. In this extensive country it
cannot but happen that numerous questions respecting
the interpretation of the laws and the rights and duties
of officers and citizens must arise. On the one hand,
the laws should be executed ; on the other, individuals
shoald be guarded from oppression. Neither of these
objects is sufficiently assured under the present or-
ganization of the Judicial department. I therefore
earnestly recommend the subject to your serious con-
sideration."
In the House of Representatives, this part of
the President's Speech was referred to a select
committee. They reported a bill which contain-
ed a variety of provisions for amending the sys-
tem. The bill was referred to a Committee of the
Whole, in which it was discussed several days,
and was afterwards recommitted to the same gen-
tlemen who had reported it. As it was printed
for the use of the members, and the subject was
extensively interesting to the community, it was
judged proper to defer a final decision until an-
other session, and in the mean time gentlemen
might have opportunity to acquire information
that would assist them to form a more satisfactory
judgment.
At the second session of the sixth Congress, the
subject was again recommended by the President.
These are his words :
'* It is, in eyery point of view, of such primary im-
portance to carry the laws into prompt and faithful ex-
ecution, and to render that part of the administration
of justice which the Constitution and laws devolve on
the Federal courts, as conyenient to the people as may
consist with theur present circumstances, that I cannot
omit once more to recommend to your serious consid-
eration the Judiciary system of the United States. No
subject is more interesting than this to the public hap-
piness; and to none can those improvements which
may have been suggested by experience be more bene-
ficially applied."
On this recommendation a select committee
was appointed. That committee reported a bill
to provide for the more convenient ori;anization
of the courts of the United States. The bill un-
derwent a long discussion and a variety of amend-
ments. It was finalljr passed in the House of Rep-
resentatives by a majority of 51 to 43; and in the
Senate by a majority of 16 to 11. After knowing
these facts, will gentlemen have the hardihood to
call this a hasty measure ?
Compare the whole proceedings with what took
place respecting a former act. Gentlemen have
spoken of the general power of Congress to re-
peal acts passed by their predecessors. Are they
prepared to repeal the act to which I now refer ?
It is the act relative to the temporary and perma-
nent seat of Government, passed in July, 1790.
That act was carried in the Senate by a majority
of 14 to 12. In the House of Representatives, a
Committee of the Whole agreed to it as it came
from the Senate. Twelve different amendments
were proposed in the House ; the yeas and nays
were taken on each of them, and every amend-
ment was rejected — all in one day. A motion
was then made for the third reading of the bill on
the Monday following ; the motion was negatived.
It was moved that the third reading should be on
the next day ; this was negatived. The yeas and
nays were taken twelve times during the sitting.
A motion was made to adjourn ; this was nega-
tived. The general rule of the House being
against reading a bill twice on the same day with-
out special order, a motion for then reading the
bill the third time was made on the part of its ad-
vocates, and carried. On taking the yeas and
nays, for the thirteenth time in one day, the bill
passed by a majority of 32 to 29. Mark the small-
ness of the majority in both Houses ; the utter
rejection of every amendment in the House of
Representatives; the hurried manner in which it
was forced on to the final question. Recollect
other considerations relative to the passage of that
act, and then judge whether it was not attended
with circumstances signally improper. If matters
of this kind constitute a sufficient cause for gen-
tlemen to repeal any act passed by their predeces-
sors, why should we remain here in i)ursuance of
that act? Will any gentleman say it is for our
personal convenience that the seat of Government
is now at this place? Is it at present for the pub-
lic convenience? Is it less expensive for indi-
viduals, or for the public, than it would be in some
of your commercial cities? Have you here the
opportunities for valuable information which
might be bad elsewhere? What, then, should
detain us, if it be not a regard to stability and
consistency in public proceedings, combined with
a regard to the expectations of respectable persons
seriously interested in the question? But if you
may repeal the act organizing the Judicial sys-
tem, what principle is there that ought to confine
the Government to the place in which we are now
assembled? Repeal this act, as is proposed by
the bill on your table, and you shake the principle
of public stability and consistency. Repeal this
act, and there can be no principle of Constitutional
obligation, none of political honor, or legal right,
to detain you here.
Gentlemen in favor of the proposed repeal have
spoken about the act as if this organization of the
courts did not contribute to the more convenient
895
HISTORY OF CONGRESS.
H. OF R.
Judiciary System,
March. lSi'2.
administratioD of justice. The argument deserves
examination.
According to the original system, as delineated
in the Judicial act that was approved in Septem-
ber, 1789. two courts, to be called circuit courts,
were to be annually holden in each district of the
respective circuits, by any two Justices of the Su-
preme Court, and the district judge of such dis-
trict. The attendance of two Justices of the Su-
preme Court at each circuit court in the respect-
ive districts, besides two sessions of the Supreme
Court annually holden by all the Justices at the
seat of Government, required of those gentlemen
such burdensome services that they at length ad-
dressed a letter on this subject to the President of
the United States, who communicated it to Con-
gress. On recurring to the Journal of the second
session of the second Congress, it will be found
that the communication was made on the 7th of
November, 1792. The copy of the letter, as sent
hy the President, has been obtained from the
Clerk's office. It Dears date Philadelphia, 9th Au-
gust, 1792, and is in the following terms :
Sir : Your official connexion with the Legislatare,
and the consideration that applications from us to them
cannot be made in any manner so respectfal to Gov-
ernment as through the President, induces us to request
yonr attention to the enclosed representation, and that
yon will be pleased to lay it before Congress.
We really, sir, find the burdens laid upon us so ex-
cessive, that we cannot forbear representing them in
strong and explicit terms.
On extraordinary occasions we shall always be
ready, as good citizens, to make extraordinary exertions.
But while our country enjoys prosperity, and nothing
occurs to require or justify such severities, we cannot
reconcile ourselves to the idea of existing in exile from
our families, and of being subject to a kind of life on
which we cannot reflect without experiencing sensa-
tions and emotions more easy to conceive than proper
for us to express.
With the most perfect respect, esteem, and attach-
ment, we have the honor to be, sir, your most obedient
and most humble servants,
JOHN JAY,
WILLIAM GUSHING,
JAMES WILSON,
JOHN BLAIR,
JAMES IREDELL,
THOMAS JOHNSON.
The PBBsnxHT ot tbk Uvitbd States.
It was undoubtedly in consequence of this com-
munication that the system was revised at the
same session of Congress. A further act respect-
ing the courts was passed, and approved on the
2d of March, 1793. By that act the system was
altered, so that the attendance of one Justice of
the Supreme Court was to be sufficient for hold-
ing a circuit, with the district judge. In case of
their being divided in opinion on the final hearing
of a cause, or on a plea to the justification, the
cause was to be continued to the succeeding court,
when another Justice might attend.
This arrangement alSbrded a relief to the Jus-
tices of the Supreme Court ; but, on experiment,
it was found to produce serious inconveniences to
suitors in the circuit courts.
It should be recollected, that the circuit ccart.-
decided, without appeal, all causes of a civil ci-
ture, at common law or in equity, where the n-
ue of the matter in dispute was between five hoi-
dred and two thousand dollars. To refer casse:
of this importance to a final decision of a sis^:-:
judge must be contrary to the sound principle;::
jurisprudence. But the mode adoptCMl for av(»i-
ing this impropriety subjected the parties toacr.-
muiated disadvantages and expense, in consequesa
of delays which were continually oecurriog. W.^
it be too much to admit, that the decisions od i^i
respective causes were generally delayed at kis
for one term in a year? What would be the av-
erage expense to the parties on account of <&:k
delay? If you include the expense for ccsb^I
for witnesses, for the attendance and travel of the
parties, on both sides, is it not moderate, very iDod-
erate, to estimate the amount of these usios at
twenty dollars for each cause? The expense i-jf
fifteen hundred causes amounts at this rate to lu
aggregate sum of thirty thousand dollars, pafbk
by the suitors for delays resulting* from the defect-
ive nature of the Judicial system. Compare ib
with what has been stated as the additional ti-
pense to the Qovernment, on account of the £fv
organization of the courts 1 A tax of thirty ih::-
sand dollars annually, levied solely on the scirirr
in the circuit courts, and levied in consequecce :'
defects in your laws, was a burden of which v^
might reasonably complain. It Teas a hutm
whose oppressive weight the Government -Ufr
not to continue upon persons who had the T\h'
to demand justice freely, and without delay, ttr^
act of the last session, as it obviates the /ote:::
causes of delay, relieves the suitors from this i>
reasonable and vexatious tax. This siatemeD*. l'
not a mere affair of speculation. Who dispc:^
the fact of there being at least fifteen baodr-:
causesdependingin the courts of the United Stat?^>
It is proved by a document before the Hcit^.
The document No. 8, notwithstanding ixsdefrcts.
exhibits enough to prove this fact.
The superior convenience of the new sTste:& i^
sufficiently proved, if it be possible for gentleroe::
to want proof of what is so evident, by the repn-
sentations from the bar of Philadelphia, and ll-
bar of New Jersey, if you regard professional ex-
perience, and by the representations from ibc x^
spectable bodies of merchants in Philadelphia ar.
New Yorkj if you regard mercantile knowl^tic
Other considerations might be mentioned, tueviLrt
the general convenience of the new system, at^.
the inconvenience of tbeformer one; but the deby<
uncertainties,andcontradictoryproceediQ^;9^wn!:.
resulted from the late defective arraneemciu
have already been pointed out with such cleanirs
and force or illustration, that it must be superior
ous for me to dwell upon this part of the subjer:
On the other side, reference has been had to t
document received from high authority. It i< tb^
document No. 8, which has been laid before q< b^
the Presidentof the United States. If the C-»-
gress had wanted the information which that docs-
ment professes to give, they would have called far
it, I presume, from a subordinate officer, whvH
897
HISTORY OF CONGRESS.
898
March. 1802.
Judiciary System.
H. OF R.
proper duty it would be to give it — the Attorney
General, not the President. On this occasion,
however, the Chief Magistrate has been pleased to
ToiuQteer his services. The purity of his motives
is not now arraigned ; but the propriety of his con-
duct is not perfectly unquestionable. Let me not
be understood as itisinuating, that he has inten-
tionally given us incorrect information. The ex-
treme impropriety of any such intention, without
regard to the hazard of eventual exposure, should
repel every idea of this kind : but the purity of
motive does not impair the evidence of fact. No
doiibt it was the object to give us such informa-
tion as had been procured. Yet, when informa-
tion was not desired, why should we have such
as has been laid before us ?
This document, with a boldness of language
bordering on poetic license^ has been called an ex-
act statement. After its incorrectness has been
detected and exposed, we have a supplementary
document sent to us, stating (I am not confident
that I precisely recollect the mollifying style of the
last communication, but I think it was nearly to
this purpose) that there was some deficiency in
exactitude. What opinion is to be formed of this
proceeding? The Chief Magistrate comes for-
ward, unrequired, unasked, and communicates a
statement which is explicitly declared to be exact ;
and yet he afterwards corrects that statement by
following it up with another. It must be unfortu-
nate for the Legislature and for the Chief Magis-
trate, that errors of this kind should take place,
because they tend to excite doubts where no doubt
ought to exist. When the President of the Uni-
ted States, with his high responsibility, and all his
means for information, is induced to come forward,
in the face of the whole American people, and to
make to them, through the Legislature, an official
declaration relative to facts, it becomes his advis-
ers to be well assured of the correctness of such
declaration. When the President gives the sanc-
tion of his authority to anv statement of facts, and
affirms it to be exact, it snould be entitled to full
credit, beyond arty possible contradiction.
The manner in which this document was men-
tioned, in the communication of the President at
the opening of the session, would lead to the idea
of its containing ample information respecting
the business in the courts of the United States.
At present, laying aside all the clerical errors
which have been pointed out, I must be permitted
to think, there are some others of such importance
as to deserve animadversion.
After what has already occurred, I confess tbe
communication itself strikes my mind as an Ex
ecutive manifesto against the former Administra-
tion -y and I deem myself warranted to consider
the present attack on the Judiciary as having been
comprehended in the general plan of hostile ope-
rations.
In a concern so important as this, where the
stake was so great, and the game to be played so
deep, it is not to be presumed that the First Ma-
gistrate would recommend the measure, as he has
done, without advising previously with the Min-
isters, of whom he may be considered as the head. I
7th Con.— 29
If his powers are to be assimilated to the prerog-
atives of the British monarch, according to the
spirit of what we have heard from some of the
advocates of the present bill, it must of course be
warrantable for the greater freedom and decorum
of debate, to consider him as surrounded by his
Ministers in council, and acting with their advice.
Taking up the communication, however, as we
find it, what do we further observe? It is well
known that circuit courts were holden in the
Sprins the last year, and again in the Autumn.
Yet tne document (No. 8) has reference to the
15th of June. If it was the wish to give a com-
plete statement, upon which we might properly
act with respect to an important system, why did
not the Executive, with his Ministers, think fit to
cause the suits for the whole year to be commu-
nicated, instead of a part of the year, during which
the system could not have gone into fair opera-
tion ? Why could not we be furnished with a
report of the business before the circuit courts at
their last autumnal sessions? Has there not been
sufficient opportunity for obtaining the informa-
tion ? Why, then, is it that we have a statement
for only the first part of the year, and not for the
whole i Is this giving to us, or to the public, full
and fair information ? It cannot certainly be pre-
tended that we have before us all the official in-
formation which might have been given upon
this subject, although its importance is not to be
denied. If we were to act on the information
sent us, we ought to have been presented, as far
as practicable, with a full view of the busine&s in
the circuit coiirts since their late organization.
But is the utility of courts to be tested soIely^
by the number of causes, and not by the magni-
tude of the questions decided ? A thousand causes,
before courts of very limited jurisdiction, such,
for example, as those before justices of the peace
in some of the States, are of far less consequence
than a single cause that might come before a court
of the United States. Did the Ministerial advisers
of the Executive hold the discernment of the Ame-
rican Congress in such low estimation as to im-
agine that, in legislating on this subject, the na-
ture of the business before the respective courts
would be wholly disregarded? where c^reat
questions are litigated, your courts should oe so
constituted as to authorize great confidence in
their decisions. The value of the interests im-
mediately in controversy, and the extensive influ-
ence of tne principles on which the decisions must
depend, should both be considered in estimating
the importance of a judicial establishment. Where
life may be taken by sentence of the court, and
where causes may be decided of the value of many
thousand dollars — causes in whose proper decis-
ion the commerce of the country is seriously in-
terested ; where the causes are of this nature, it
is important that the organization of the court
should be such as to inspire confidence by its ten-
dency to unite talents and character, with ample
opportunity for mutual comparison of opinions
and mature deliberation. Were the Ministry
wholly regardless of these principles? Nothwith-
standing the facility with which further informa-
899
HISTORY OF CONGRESS.
9^
H. OF R.
Judiciary System,
Mabch. b;:
tion might have been given as to the nature of
the respective causes, especially in relation to the
value m controversy, it is to be remarked, that
the communication is wholly silent respecting
these objects.
As I see the gentleman from Maryland (Mr. S.
Smith) in his place, I beg liberty to notice again
the dismissions from office in Connecticut. I re-
fer to the case of the supervisor of the revenue
and two collectors of the customs. If I under-
stood the gentleman when he was speaking about
the officers who have lately been removed, he
would allow that there were some worthy men
among them, although he appeared to be satisfied
that, in general, they ought to have been dismiss-
ed lor not conducting properly in office. His
sense of justice, I am persuaded, would not per-
mit him to apply this censure to the gentlemen
whom 1 have mentioned. But as he did not
make any particular exceptions, and his language
might, pernaps, be construed so as to im^icate
persons very differently from his intentions, I
i^ould wish the gentleman to state whether he
would have his observations understood as impli-
cating the gentlemen who have been dismissed
in Connecticut ? If he will be so good as to do this
I will give place to him.
Mr. S. Smith. — My observations did not ap-
ply to those gentlemen. I said nothing against
them.
Mr. Dana. — I am happy to have had this op-
portunity of making the inquiry. I believed the
g[entleman from Maryland to have been in situa-
tions where he might be informed respecting
those gentlemen ; and was satisfied that, if he had
become acquainted with their true characters, he
could not be willing to accuse them of having
conducted improperly in office.
To resume the consideration of the document
(No. 8,) it is to be observed, there is another ma-
terial deficiency. The document has been recom-
mended to our attention as if it were an exact
statement of all the causes decided or pending be-
fore the courts of the United States. But is it so ?
No, sir ! It is but an imperfect docket of the cir-
cuit courts; we must include in this description,
however, the courts holden by such district judges
as exercise the powers of circuit courts. There
is no mention of the causes before the ordinary
district courts. Not a word about the causes in
the Supreme Court. Why are all these omitted?
Is it of no moment for us to be acquainted with
them, if we are to revise the whole "Judiciary
system of the United States ?" After the recom-
mendation of this reviiiion, at the opening of the
sef»sion, such an imperfect document serves to
argue an expectation that Congress would pro-
ceed to alter the system without examination of
the subject. If it was prepared with a view to
inform the people, what information does it give?
Such as cannot be relied on. We have been
called upon to receive it as completely correct ; it
is found to be palpably erroneous and defective.
In addition to what has been communicated to
us on the part of the Executive, the system, which
the present bill is designed to repeal, has been
censured in the memorials of sundry inbab.^r
of the city and county of Philadelphia. T^
memorials are all alike; different persons hhi:
signed printed copies to the same effect. IV:.
are their complaints againsit the act in quesik:
The time of bringing it forward, the masBft.
conducting it though the seveiral stages. tbesabE^^
quent appointments under it, are all meciktie:
and, for reasons in favor of repealing the rt
there is a general reference to the debates ict^
Senate. It is not in order, sir, for any mtsr
of this House to mention, in debate, what baibe>i
said in the other House. 3y your rule^, I ami.
permitted to reply to any ot the arguments vi)?ci
have been urged by those Senators -who adrociK
the repeal. This part of the memorial thererx-r.
cannot, without inconsistency, be regarded b/ik.
House. For the rest, what informacioaiifirfc
yoii? The proceedings of Congress appearYatn
their records, and, it is to be presumed, are ai least
as well known to the respective members.asici^f
memorialists. The mention of appointroeoh s:-
der the act may perhaps be considered as m^i
ing some information unfavorable to the cina:-
ters of the circuit judges. Sat, as to tbeo r:*
memorialists cannot be presumed to have parr
ular knowledge, unless it be with respect to jcir
in the third circuit. And these judges are spcL^
of in terms of high respect, by the gentleiu*!
the bar in Philadelphia and New^ Jersey. T:
honorable testimonial is from geotlemeo o( pr
fessional eminence, who have had an opporrc-j;
of personally observing the judges in attemlia^ ir-
respective courts. To this effect too, yoo bare v
testimony of the very respectable body of d"
chants in Philadelphia, whose representaiici ::
this subject has been submitted to the Hns^
They fully concur with the gentlemen ot ihth
in highly appreciating the services of the cin^
judges. The characters of those judges are. a
questionably, placed on a basis too firm to bts.-
fected by any thin^ insinuated against thefi.
The representations from the gentlemecGf r^f
bar in Pniladelphia and New Jersey, firaiti; z
strong body of evidence in favor of the new orgai-
ization of the courts. They are gentlemen acV--
tomed to the transaction of professional bossf^
and have experienced the comparative efftci- <^
the former system and the present. In a raaa:'
honorable to themselves and to their prof«» :i
the gentlemen of the bar in Philadelphia. altho:.r
well known to entertain different seniimeflis
political topics, have laid aside their politicaJ &=
tinctions to attend to this subject, which cocrrr
the common interest of honest men of all part.-
and have united to support a system whicli ii-
believe to be of high importance for the dee . .
ministration of justice. It is to be regretted ::.
any member of the National Legislature shouk *-
induced, from any cause whatever, to give urr--
ance to such sentiments as have been throws .
against the professional gentlemen who have h -:
testimony in favor of the present organizanoa
the courts. Persons who have been intimateh ^ *-
quainted with none but the mere underlings of : * -
profession, might perhaps be expected to iada.^.
901
HISTORY OF CONGRESS.
902
March, 1802.
Judiciary System,
H, opR.
suspicions, that geollemen so respectable as these,
would state their opinions in favor of a system,
solely from motives of pecuniary interest, and not
from the conviction of their unbiassed judgment.
An acquaintance with the course of professional
business, however, might satisfy men of candid
minds, that pecuniary motives cannot have in-
duced the gentlemen of the bar to address you as
they have done. It is to be hoped, for the honor
of the House, that we shall not act upon sentiments
so little worthy of the National Legislature, and so
unjust to gentlemen of professional reputation.
Sir, the testimony of the gentlemen of the bar on
this subject, is one of the most respectable sources
of opinion.
After what they have said, to evince the superior
convenience of the present organization of the
courts, if any doubt can exist as to the fact, it is
to be recollected there is the additional testimony
of mercantile gentlemen in the populous cities of
Philadelphia and New York. It is observable,
however, that the merchants of Philadelphia, and
the Chamber of Commerce in New York, like the
gentlemen of the bar, have abstained from any
discussion of Constitutional or political questions.
With a delicacy as honorable to themselves as it
is respectful to the Legislature, they have left it
for the respective members to reason on general
topics ; and have spoken of what has passed within
their own observation and experience. The mer-
chants address you with a particular reference
to the commercial interests of the country. Will
you deny their practical knowledge with respect to
the business in which they are occupied, and for
which they were educated 1 They speak of the
proposed repeal as a measure which must be se-
riously prejudicial to their commercial concerns.
It should be remembered, that the questions which
▼ery frequently occupy tne courts of the Union,
are such as relate to commerce, not only with for-
eigners, but between persons of different States.
On these subjects Congress have power to legis-
late, and the Judiciary to judge. Much of the
sredit of the country, the assurance of obtaining
justice, the national character for integrity, de-
pends on a system for the wise and impartial de-
cision of judicial questions. Is it not necessary
;0 your commercial prosperity, that the foreij^n
creditor of your merchants should have a security
br as ample justice here as he could in his own
country ? Is it not necessary, in a national view,
:hat there should be such an organization of the
•ourts as will fully satisfy creditors abroad, or
n the respective States, that their claims shall be
fairly tried without being subjected to the influ-
ence of local prejudices? Letmeask, sir, are your
:nerchants generally such capitalists as to make
nstant payment for everything they import? —
rhey cannot do it. They mu^t have credit, if the
country is to continue its accustomed commerce,
^nd we know that credit is not an object of com pul-
lion, as it respects those who give it. They require
I just cause of confidence. Credit is free as human
bought. Mercantile gentlemen in Virginia, in
3(eorgta, or any other State, when it is known that
imple justice is assured to creditors in the courts
of the United States, may obtain a credit abroad
which otherwise would never be given them.
Without a confidence of this kind, you must not,
you cannnot speak of your country as being in
good credit. When gentlemen of extensive mer-
cantile information address you in favor of these
courts, as requisite for securing mutual justice and
the prosperity of commerce, they are entitled to
attention. They are a body of men who have too
much honor to slate for true, anything of which
they are not well satisfied that it is the tact ; and
they have too much knowledge to err on a poini
so intimately connected with their pursuits.
What, sir, I pray you, must be the consequence
of measures contemplated at the present session
of Congress? If you abolish the internal reve-
nues, and lay upon the commercial interest the
burden of supporting Government, will you su-
peradd the destruction of an establishment which
authorizes general confidence, and is beneficial to
your commerce both foreign and domestic ?
Consider the representation from the respecta-
ble body of mercantile gentlemen of Philadelphia.
If you abolish all the other courts, they request
that the circuit court may be preserved in the
third circuit. This, it is known, extends over
New Jersey, Pennsylvania, and Delaware. The
merchants request the preservation of this court,
as being an institution in which their commercial
welfare is most intimately concerned. If you re-
solve that all the expenses of Government shall be
defrayed from commerce, will you not pursue an
institution which may assist the merchants to ob-
tain the means of paying the sums which you
demand from them ?
Gentlemen have undertaken to inform us that
the State courts will be sufiicient; and appear to
have a peculiar jealousy of the Federal courts.
But they may be reminded, that the present ques-
tion is not what they may think, but what others
will think of the courts of their respective States.
Whatever may be the administration of justice in
any of the State courts, yet they are not sufficient,
in a national view, if foreigners or citizens oi
other States have not a confidence in them. The
declarations of gentlemen, therefore, in commen-
dation of the courts of their own State, cannot,
in the present case, establish the point in their fa-
vor, unless it is also shown that equally favorable
opinion? of them are entertained by persons who
live without the State. But why are some gen-
tlemen so zealous for State courts, to the destruc-
tion of the courts of the Union ? Shall we be
told that such is the will of the people ? While
I speak, sir, of the people in this manner, I mean
Virginia. Why should that particiilar State have
a predominant influence for governing the Union?
And why should a zeal against the Federal courts
be particularly manifested from that quarter? Is
it apprehended, if these courts should continue
and become objects of general approbation, that
the eflect may be incompatible with some part of
their policy ? Is it apprehended, that there may
eventually be is^sued^ from the Federal courts, a pro-
cess whicn will seriously affect some of their ba-
ronial estates ? It would be too much, for this
903
HISTORY OF CONGRESS.
m
H. OP R.
Judiciary System,
March, 1SG2.
cause, to abolish a system whicK is so evidently
formed for theconveoient administration of justice.
As a further reason for repealing the act in
question, it has been contended, that some of its
provisions are unconstitutional. This, however,
if true, does not require you to repeal the whole
of an act, containing a variety of distinct provis-
ions; although it might be a sufficient cause for
amending the act, so as to remove from your stat-
ute book such parts as are judged to he not agree-
able to the Constitution. A single provision which
may be thought exceptionable, does not necessa-
rily contaminate the whole of a system. Gen-
tlemen have spoken as if the act in question had
inflicted a wound on the Constitution. But will
you, to cure a supposed wound, employ the guil-
lotine ?
A gentleman from Kentucky, (Mr. Davis,) has
charged the act with being unconstitutional, be-
cause it authorized the Supreme Court to issue
writs of mandamus. He founds his charge on the
idea that the jurisdiction of the Supreme Court is
appellate, and that the writ of mandamus must
issue from a court of original jurisdiction. Will
the gentleman say, that it is legally correct to call
the mandamus an original writ? Will he state
what is the nature of the writ of mandamus ? It
is essentially appellate. It is in the nature of an
appeal to a superior tribunal for redress, in cases
where it is alleged that justice has not been done
by a subordinate tribunal or officer. There is no
novelty, sir, in allowing to the Supreme Court the
power of issuing writs of mandamus. A provis-
ion to this effect is found in the thirteenth section
of the original Judicial act, passed in 1789. Ap-
plications have been repeatedly made to the Su-
preme Court for such writs. Allow me to state
one of them. It was founded on an act of Con-
gress respecting invalids, passed in 1792. That
act referred it to the judges holding the several
circuit courts, to examine the claims to invalid
pensions, and to certify the result, with their opin-
ion in each case, to the Secretary of War, who
was accordingly to place the name of such appli-
cants on the pension list, except in any case where
he should have cause to suspect imposition, or
mistake. The judges, as such, did not think the
act Constitutionally obligatory upon them; but,
in several circuits, they agreed to consider them-
selves as commissioners designated by the act,
and, under this character, proceeded to examine
the claims. The result, when in favor of a claim-
ant, was certified to the Secretary of War. There
were questions, however, respecline the whole
business; a further act relative to invalids was
passed in February, 1793; and the Secretary.did
not place any of the persons, whose claims had
been allowed by the judges, on the list of pension-
ers. It was for the purpose of having the names
of one of these claimants placed on the pension
list; that an application was made to the Supreme
Court. In behalf of the claimant, Mr. Edmond^ of
Connecticut.moved for a mandamus. The motion
was made in February term, 1794. I have an ex-
tract from the minutes of the Supreme Court,
certified by the Clerk of the court :
" Wednesday, February 5, 1794. — ^Present: Thf
honorable John Jay, Chief Justice ; WOlimzn Co^;.
James Wilson, John Blair, and William Pattersoa.A*-
sociate Justices.
" Mr. Edmond, of counsel for John Chaodler, t cat-
zen of the State of Connecticut, this day moveii Uk i
mandamus to the Secretary of War, for the purpose r.
directing him to cause the said John Chandler to brpe
on the pension list of the United States, as an invLi
pensioner, conformably to the order and adjudicalioB «
the honorable James Iredell and Richard Law, EsqH
judges of the circuit court of the United States
" The court informed Mr. Edmond, that when t^
trial of the cause now before the €X>urt should be £:•
ished, they would hear him in support of his motsoo.
" Friday, February 7, 1794. — The court procwtk
to hear Mr. Edmond on the subject of his motion bu;
on the 5th instant, and agreed to hold the same tsier
advisement.
« Thursday, February 13, 1794. — ^The cobs pw-
cecded to hear argument of counsel on the zsi^ of
Mr. Edmond, for a mandamus to the Secretaiy of Wc.
made on Wednesday, the 6th instant.
»« Friday, February 14, 1794. — ^The court hiTw
taken into consideration the motion of Mr. EdiDi»i ;t
the 5th instant, and having considered the two teu d
Congress relating to the same, are of opinion. ^ i
mandamus cannot issue, to the Secretary of War, k
the purpose expressed in said motion."
There does not appear to have been any qn^
lion respecting the general power of the Supree;
Court, to issue a maodamus to the Secretary ^
War, or any other subordinate officer. The iL^-
teenth section of the original judicial act exprc!'
ly gave the " power to issue writs of mandasi^i
in cases warranted by the principle and o^gcs.r
laWf to any courts appointed, or persons holikt;
offices under the authority of the United States.'
And a motion for a mandamus wxls a ree^r
mode for obtaining a decision of the Suprese
Court, respecting the validity of a claim to a fu-
sion in the case stated. The decision was a^aisfi
the claim. Of course, a mandamus could iot is-
sue for the purpose expressed in the mocioa.
When such has been the unquestioned asa^t
heretofore, is it not extraordinary that there bis
not been prudence enough to say less about tb^
case of Marbury against the Secretary of Siatr:
In this case however, no writ of mandamus hn
been issued ; although there has been a prepan-
tory process of an inferior nature. On moticQ .'
Mr. Marbury, at the last term of the Supreoc
Court, a rule was made for the present Secreiarr
of State to show cause why a mandamus sboti.:
not be awarded to liim for the delivery of a can-
mission which was claimed by Mr. Marbury. t^
a ju!<tice of the peace in the District of Colonatii.
This was but a regular notice to the Secrecarr.
of the application which had been made to t£:
court. If no cause is shown, the next process i:
not a peremptory mandamus. For there are tw
writs of mandamus which are issued in snccetr
sion ; the first being the alternative, to do this, cr
signify reason to the contrary; and then, if s:
sufficient reason is signified, a peremptory «r.:
may issue. But in the present case, neither oi
these writs have been awarded. By a rule t^
905
HISTORY OF CONGRESS.
906
March, 1802.
Judiciary System,
H. OP R.
show cause, the court has required that notice
shall be given of the purpose for which Mr. Mar-
bury has made his appeal to them. This was not
a mandate sent into the Executive cabinet, as has
been represented. I have a certified copy of the
rule of court, comprehending a statement of the
principal allegations as they appeared in evidence.
It does not make any mention whatever of the
present President of the Onited States. But that
a Secretary of State is amenable to a writ of
mandamus from the Supreme Court, is a position
clearly warranted by prmcipleand precedent. A
Secretary of War, under a former Administration,
was not supposed to be exalted above the reach
of such a process. He did not consider himself
degtaded by beinff called upon in this form where
a question of right was to be decided, and a spe-
<:ific relief was the object. Is there anything, in
a case like this, to make a difference between a
former Secretary of War and the present Secre-
tary of State ? What are the facts respecting the
application of Mr. Marbury? Several of them
are stated in the rule of court, which has been
published in a variety of papers. Mr. Marbury
Bad been, with the advice and consent oi the Se-
nate, appointed and commissioned, by the late
President of the United States, as he fully believed,
to be a magistrate for the county of Washington,
in this district; and he applied to the Secretary
of State for the commission. On principles of
ordinary courtesy it would not have been expect-
ed, but a appears to have been the fact, that the
•Secretary of State was so far from delivering the
commission, that he did not even answer the in-
•quiryofMr. Marbury, when he requested to be
informed whether the commission for him was
signed by the late President, and sealed with the
seal of the United States.
There are some other circumstances which do
not appear on the face of the rule to show cause,
although they are mentioned in the affidavits^ of
vrhich I have certified copies. After mentioning
the demand of the commission, it is stated in one
affidavit, " that when the demand was made upon
^ the Secretary of State, he referred to his chief
' clerk, who answered, that the commission was
' not in the office, and had been delivered to Mr.
* Lincoln, the Aitorney-Qeneral."
From another affidavit it appears, that Mr. Mar-
bury '^applied to Jacob Wagner, chief clerk in
' the Department of State, for an affidavit respect-
' ingthe commission being sealed with the seal of
' the United States, and that the said Jacob Wag-
*' ner declined making a voluntary affidavit, alle-
' ging that he did not conceive himself at liberty
^ to make such an affidavit, in consequence of his
< official relation."
The chief clerk has undoubtedly conducted as
became his peculiar situation. It was to be ex-
pected that he would consult the Secretary of
^tate on the subiect. Whatever personal civility
xnigbt be agreeeble to the disposition of Mr. Wag-
ner, it was not proper for him, in a case so circum-
stanced, voluntarily to contravene the instructions
of the Head of the Department.
On such facts it may be asked, why the point in
question was so much avoided ? Why was there
this shunning, and chanffin^ from one to the other?
Why all this dodging? Why all this consulta-
tion ? Why give all this trouble about ascertain-
ing facts, if they are doing ri^ht ?
The next objection is one \vnich has been made
by a gentleman from Virginia, TMr. Ranoolpb.)
I refer now to the gentleman who came forward
assuming the humble style of a shepherd, and ap-
peared so confident that the work must be done,
and well done, on his coming to the encounter
with his sling and his stone, as if to evince the
nature of his pious zeal^ he afterwards (if I did
not mistake his expressions) gave us to under-
stand, that in a certain supposed case, he would
violate the Constitution, altnough sworn to sup-
port it, and then throw himself on the mercy of
the people for pardon.
He has contended that the act in question should
be considered as unconstitutional, because of the
abolition of the former circuit courts. His objec-
tion proceeds upon the idea, that in abolishing
those courts, the act abolished the office of circuit
judge, and thereby excluded from office the justices
of the Supreme Court, and the district judges.
Upon this point it is to be observed, that there
never was. before the last session or Congress,
such an office as that of circuit judge of the Uni-
ted States. It is true, that justices of the Su-
preme Court, with the respective district judges,
were authorized to hold what were styled circuit
courts. But the justices were all appointed, com-
missioned and sworn into office as justices of the
Supreme Court, and not as circuit judges. In
like manner the district judges were appointed,
commissioned, and sworn as such, and not other-
wise ; this was their official character. The title
of circuit judge was unknown in the laws of the
United States. This objection therefore fails es-
sentially. It is founded on the supposed destruc-
tion of the office of circuit judge, which in fact,
never had a lesal existence, until it was created
by the new judicial act.
Another objection relates to certain district
judges. It has been mentioned with an air of
confidence, as if those judges were deprived of
office by the abolition of certain district courts.
And yet it is certain, that the office of district
judge is not necessarily connected with the exist-
ence of what has been styled a district court un-
der the laws of the United States. No office of
jud^e of a district court, by that name and desig-
nation, was ever created by any of the laws. The
name, however, by which a iudicial office is des-
ignated at its creation, is perhaps as essential in a
legal view as the name which designates a cor-
poration. The only judicial officers of the United
States, before the passage of the new judicial act,
were the chief justice and associate justices of
the Supreme Court, and the district judges resi-
dent in the respective districts. This residence is
one of the essential qualifications with respect to
the office of district judge; and from this tne offi-
cial name is taken. By the original judicial act.
passed in 1789, the United Slates were distributed
into districts, and provision was made for having
907
HISTORY OF CONGRESS.
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H. OF R.
Judiciary System.
March. 1^''2.
in each of the districts, "one judge, who shall
' reside in the district for which he is appointed,
' and shall be called a district judge." In making
these remarks, I have, reference to the observa-
tions of a gentleman from Massachusetts, (Mr.
Bacon,) who expressed himself, more logically,
perhaps, than the Virginian shepherd.
If I clearly apprehended his observations, the
argument was founded on the use of the term
court. He treated the subject as if court and
judge were completely synonymous, proceeding
upon the idea that there was a perfect identity in
their meaning ; and thence would have it inferred,
as a necessary consequence, that you could not
dismiss the court without dismissing the judge.
Now. if this idea be correct, we might use " court"
instead of "judge," and vice versa. How will
this answer ? Would the gentleman think proper
in all cases, to substitute the word judo;e or judges,
instead of the word court, as used in the Constitu-
tion and laws of the United States?
The Constitution, in the third section of the
third article, speaks of " confession in open court."
Would he a^ree to the substitution of "judge"
for *' court" in this case? Among the amend-
ments to the Constitution you may find an article
where it would be equally improper to use the
"judge" as a substitute for the "court." "No
* fact, tried by a jury, shall be otherwise re-ex-
^ amined in any court of the United States, than
' according to tne rules of common law."
This too, it may be remarked, is a Constitu-
tional recognition of the common law, if the ob
jection about admitting it in courts can be thought
relevant to the question on the present bill.
In the fuurth section of the judicial act of 1789.
after defining the circuits, it is said, " there shall
* be held, annually, in each district of said circuits,
* two courts, which shall be called circuit courts."
As used in this place, the word courts cannot
mean judges, but must mean, judicial sessions.
And will any gentleman say that these sessions
could not be altered, or that one of them could
not be abolished, if necessary, without abolishing
the office of judge ?
The truth is, .sir, that the word court is used in
various significations, all of which have reference
to objects of a judicial nature. One of its plain-
est significations perhaps is, a seat of justice, a
Elace where justice is administered judicially. It
as another signification, as it is used for a judi-
cial body, or the form of a judicial institution.
We have seen that it is used to signify a judicial
session. And there is a further use of it, some-
what different from either of these ; when, after the
session has been commenced for several days, the
clerk is directed by the judge to open the court :
here the word does not signify either the place
for administering justice, or the judge, or a judi-
cial body, or form of institution, or session, but
the sitting for a particular day. And there need
be no difficulty about understanding the term, al-
though used so variously. The true meaning in
any place may be sufficiently ascertained by at-
tend ing to the subject*matter. And this is a sou nd
rule oiconstruclion.
What were the powers of a district judge, as h?
is legally styled, under the act by which tne iAtt
was created ? In his district court, sittiii£r aloce.
he might take cognizance of oflences, where the
punishment could not exceed thirty stripes, era
fine of one hundred dollars, or imprisonmea: i(x
six months. Besides this, (he act gave him cog-
nizance of suits by aliens for any tort io vic^ari^
of the law of nations, or a treaty of the Uoi-jc^
States; and of suits against Consuls or Vice Coi>
suls, of all civil causes of admiralty and maritiw
jurisdiction; seizuce, and suits of penalties, aatk
laws of the United States, and suits at comaMi
law in behalf of the United States, for the ralw
of not less than one hundred dollars. A ppeahizhi
writs of error from his decisions to circuit co«r&.
were allowed in admiralty causes, where the valor
in dispute was more than three hundred dolir^
and in civil actions where it was more than iiir
dollars exclusive of cost. This was the geDen.
jurisdiction vested in the district judges, wks
holding the ordinary district courts. The priiieh
pal business related to causes of a maritime at-
lure, and bonds taken of the custom-houses.
The new judicial act has been censured forski-
ishing the district courts in Kentucky and Teases-
see. But what were these courts ? The jurbd^
tion of the district judges, when holdings the it-
speclive courts for these districts, 'vras matehaiy
different from the ordinary jurisdiction. It ex-
tended to all causes cognizable in a circuit coan.
except appeals and writs of error. And for vjn
exception, there was this decisive reason, that ibe
district judges of Kentucky and Tennessee eier-
cised the power both of district court and a circc:
court : it would have been an absurdity to sar
that either of these judges should try appeals asfi
writsof error from nis own decisions. As there
was this union of district and circuit po^rers. it vis
provided, that writs of error and appeals shottl^
lie, from their decisions, immediately to the So-
preme Court, in the same causes as from a ciftjit
court to the Supreme Court, and under the sine
regulations.
And it is well known, that the jurisdiction wkick
might be exercised in the circuit courts was of &r
extensive nature. In criminal affairs it exteo^ec
to inflicting the punishment of death. la afiai-^
of a civil nature, it extended to suits at comisv:
law or in equity, where the value in dispute ex-
ceeded five hundred dollars, and might rise abci;
this sum without limitation. Appeals and wr.1:
of error to the Supreme Court were allowed ca;
in causes for more than two thousand dollars is
value.
What, sir, was done by the new Judicial act'
It abolished the Judicial sessions that werestyid
district courts in Kentucky and Tennessee, aai
established new sessions under the nameof cirei^
courts. But not a single Judicial ofiice was atui-
ished. Will it be said that the district judges «
Kentucky and Tennessee do not still holdthctf
offices, merely because they are to sit witk i
third judge, who resides in the circuit and is cLV
ed a circuit judge? All the former powers a&4
jurisdiction of the courts may now be ezercia^
909
HISTORY OF CONGRESS.
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March, 1802.
Judiciary System.
H. OP R.
in the circuit courts to be holden in those districts.
For these circuit courts, it should be remembered,
are different from the other courts of this name.
The general pow^er of ordinary district courts and
circuit courts may both be exercised in the courts
for the sixth circuit. Where the Judicial powers
remain so esseniiaUy the same, will gentlemen
contend, that this change of the mere name of the
courts has abolished the office of those judges ?
The new Judicial act has drawn a clear distinc-
tion between the first five circuits and the sixth.
By the seventh section of the act, it is provided
that there shall be in each of the aforesaid cir-
cuits, except the sixth circuit, three judges of the
United Slates, to be called circuit judge?, one of
whom shall be commissioned as chief judge; and
that there shall be a circuit court of the United
States, in and for each of the aforesaid circuits, to
be composed of the circuit judges within the nve
first circuits respectively. With respect to the
circuit which includes Kentucky and Tennessee
with the district of Ohio, it is provided that
" There shall be appointed in the sixth circuit a judge
of the United States, to be called a circuit judge, who,
together with the district judges of Kentucky and Ten-
nessee, shall bold the circuit courts hereby directed to
be holden within the said circuit ; and that whenever
the office of diBtrict judge, in the districts of Kentucky
and Tennessee, respectively, shall become vacant, such
vacancies shall respectively be supplied by the appoint-
ment of two additional circuit judges in the said
circuit."
And, by the twenty-fourth section of the act, it
is provided :
" That the circuit judges to be appointed for the
siith circuit aforesaid, severally, shall be invested with,
posflcsR and exercise all and singular the powers now
vested by law in the district judges of the United
States."
As the act required from the district judges of
Kentucky and Tennessee additional duties, al-
though of precisely the same nature with those
which they performed before, an addition was
made to tneir compensation. But is there any
power which either of those judges might before
exercise in his official capacity, from which he is
now excluded? This is so far from being the
case, that even the circuit judges, who may be ap-
pointed to succeed the present judges in Kentucky
and Tennessee, whenever their oflSces respectively
shall become vacant, are severally authorized to
exercise all the powers vested in the district
judges of the United States.
Nor is this last a useless provision. For a dis-
trict judge, although not sitting in what is legally
styled the district court, may exercise various
powers in virtue of his judicial office. For exam-
ple, he may administer the oaths of office, and take
depositions under the laws of the United States,
and issue writs of habeas corpus, in which case he
may decide judicial questions ot a very interesting
nature. He may also issue commissions of bank-
ruptcy ; and in such case may cause a jury to be
empannelled for inquiring into facts before him,
and after attending to the various proceedings* he
may finally decide, as to allowing the bankrupt
a certificate of discharge.
As to the question that arises under the Consti-
tution, let me now ask what is the office of a judge
of the United States? Is it not an authority or
legal right to exercise. the power, and to receive
the compensation appertaining to a judicial em-
ployment? Upon this construction you cannot
apply the terms court and office indiscriminately*
and say that they have each the same efi*ect. I»
not this idea of the judicial office correct ? Permit
me, sir, considering its bearing on the present 8ub«-
ject, to repeat the definition. The ofiSce of judge
under the Constitution of the United States is an
authority to exercise the power, and to receive
the compensation appertaining to a judicial em-
ployment. An authority to exercise judicial
power, a legal right to receive a determinate
compensation, are of the essence of the office.
While the judge is not divested of either of these
essential attributes of his office, the judicial sea*
sioos may be altered, new names may be given
them, and the jurisdiction may be increased or
diminished. But this power of modifying the
courts and varying the judicial duties, may not be
exercised in such a manner as to produce the efiect
of depriving the judge of office by circuitous ope-
ration. This would be an abuse of power, which
ought to be condemned as contrary to the spirit of
the Constitution. The letter of tne Constituticm
does not permit you, while a judge behaves well,
to divest him at once of every species of jurisdic-
tion.. Nor indeed does it permit you wholly to
divest him of the jurisdiction appropriate to his
office.
With respect to jurisdictions, the Constitution,
if you will attend to it, will be found to have
marked one great distinction. Some of the judi-
cial officers of the United Slates are to have
authority for deciding in the last resort. Others
are to exercise a subordinate power; and their
decisions are subject to the revision of a superior
tribunal. This distinction is important in juris-
prudence; and very different qualifications might
be judged requisite in appointing persons to offices
so distinguished from each other. The Constita*^
tion establishes no other distinction of courts than
that of supreme and inferior. It has made no
distinction of grades between the various inferior
courts which may be established by Congress.
The jurisdiction of them all has the character of
subordinate. And while you assign only subordi-
nate {{ower to a judge of the inferior grade, you
observe the Constitutional distinction respecting
judicial offices. The essential difference between
them is in the jurisdiction. The decisions of
judges invested with none but subordinate juris-
diction, are liable to be controlled by the supreme
judicial authority. The justices composing the
Supreme Court are invested with jurisdiction in
the last resort; their decisions are above all judi-
cial control. Vary, therefore, tlie judicial sessions
and the judicial duties as may be iound expedient;
yet, if you do not change the jurisdiction fronsi
subordinate to supreme, the essential qualifications
and rights of the judges of inferior courts may be
911
HISTORY OF CONGRESS.
915
H. OP R.
Judiciary System.
March, \m.
said to remain inviolate, according to the princi-
ples of the Constitution.
Before the passasre of the new judicial act, the
district judges of Kentucky and Tennessee were
authorized to exercise judicial power in an inferior
court. For this they still have authority ; and
their jurisdiction, retaining its subordinate char-
acter, IS perfectly distinct from that of the Supreme
Court.
By the Constitution, all the judges of inferior
courts are to hold their offices by the same tenure
as those of the Supreme Court. In this respect
there is no distinction between them; and the
principle has never been infringed by any act
which has yet been passed concerning the courts
of the United States.
The district judges, it may be recollected, were
invested with original jurisdiction in admiralty
and maritime causes, which might ultimately be
removed into the Supreme Court by appeal. But
what business of this kind was to be expected in
Kentucky and Tennessee? Although officers of
the customs have been appointed, I do not see a
single suit mentioned in the report, as coming
from those Stales.
Mr. Davis made some observations as to the
reason of there being nothing from them seen in
the returns.
Mr. Dana. — However that might be, so little
business is done there that considerable salaries
are allowed to the officers in addition to their fees.
From all this I would only infer,that there cannot
be in that quarter of the Union, many custom-
house bonds, nor many seizures under the laws
of trade, nor many prizes for the cognizance of
any court. It may be presumed that district courts
were established there from civility to those States,
which had been recently admitted into the Union ;
for as to the principal business of ordinary district
courts there could be none to require them. It
was, therefore, no injury to the people of those
States to modify the courts there according to the
new judicial act. The business, whatever it was,
has been transferred to a circuit court, which is to
be held in each of the districts within the circuit.
In this court the district judges are to sit. and with
a circuit judge, are to have cognizance of every
cause of whatever nature whicn was before cog-
nizable by them, sitting in what were styled dis-
trict courts. The judicial sessions have been va-
ried; but no judicial office has been taken away.
The jurisdiction to be exercised by the judges is,
in its nature, the same as before; and the objects
of it are as before, in all such causes as are cogni-
zable in the ordinary district and circuit courts.
The judges continue to hold their offices by their
original titles; they remain authorized to exercise
judicial power in an inferior court, and are legally
entitled to receive their compensation, which has
not been diminished, but increased.
There is one other argument in favor of the
proposed repeal. It is in substance, that the act
should be repealed to manifest the power of Con-
gress over the Judiciary department.
In this view of the question, the bill on the table
has been zealously supported. It is certainljr a
singular principle of legislation that you shcoii
legislate merely to 'show your power. But era
if the bill should be passed, will it manifest ^
necessity or propriety of your exercise of pover a
the present instance? Although it may prove thi:
you are in possession of power, ivill it prove yc^^
Constitutional right to displace the judges?
^' During good behaviour" is the tenure b?
which every judge of the United States holds b
office. If tne idea were to be expressed in a m-
ative form, it may be said no judge shall be i-
vested of his office while he behaves himself vti
Here the general sentiment is the sameasirbsi
it is said " the judges shall hold their offices im
inor good behaviour."
If the term hold has any appropriate or Itsi
meaning, so the term divest has its appropmt^
meaning on the other part. And when iti^sLi
a person shall hold an office or an estate, ii i*
equivalent to saying that he shall not be dire^ei
of it. The question then is, ivhether the ^
en t bill goes to divest the circuit judges of tkir
offices ?
Will ffentlemen say that this is not the objec::
What else can they mean? Bvery part oi'ist
bill is calculated for this purpose. It is tk Terr
essence of a Judicial office under the ConstituicA
to be entitled to exercise Judicial power, aad r^
ceive a regular compensation. But this billseizf}
on the power and the salaries at once, aid k-
prives the judges of both. It fs not the act c!v
last Congress which directed that certain Judicx
sessions should cease, while the judges were v
exercise their official power in the same cause&%^
before, although they were to hold their courts sr-
cording to a new arrangement ; their salaries. t:c
were not only continued, but diminished. Br'i
bill you now strike at the Judicial sessions, at il
the power of the judges, at all their services, a^
the whole are to fall together.
Are we to be told that this bill is directed agair^
the office, and that in this view it is not infncrica
of the Constitution to pass it ? Will geniUxn
say that the procedure does not touch the ji2^
but merely his office 1 How is it possible to uaz-
tain such a position? It has hitherto been u:-
derstood, sir, that ajudjgeis a person havio^ai:
dicial office. If the office is destroyed, althoq:
the man may exist, the judge is no more.
We have been told by a gentleman from V/
ginia (Mr. Giles) that the term h4)Ui istecboirii
aving reference to a person holding and a per^t
granting. He, as I understood him, would hi^*-
it believed that the President of the United Statr
is the person granting, and that the judges hui
their offices of the President. To suppwt it*
doctrine, the gentleman reminded us that the Prf^
ident, accordmg to the Constitution, has power:-
nominate, and, by and with the advice and cce-
sent of the Senate, appoint the judges and otii!'
officers, and to commission all of them. So, :o'
a gentleman from Vermont (Mr. I. Smith) fii^
contended that the power of appointment, as Tf^'-
ed in the President, implies the power of remonl
I and, therefore, that the expression '^ during gc--«:
I behaviour," having reference to this power, is l
913
HISTORY OF CONGRESS.
914
March, 1802.
Judiciary System.
H.ofR.
^uard the judges against being removed by the
President. •
As to the power to remove from office, I believe
it is no where in the Constitution given explicitly
to the President, with respect to any officer, al-
though of his sole appointment ; ana it is to be
remembered that the Senate have a voice with the
President in appointing the judges of the United
States. When the Department of State, of the
Freasury, and of War, were established, at the
irst session of the first Congress, the Secretaries,
i>v the terms of the act respecting them, were de-
clared liable to be removed from office by the Pres-
ident. By the Judicial act passed in 1789, the
marshals were removable at his pleasure. As the
principle was recognised in this manner by acts
3f Congress, the power of removinc^ other Execu-
tive officers has been considered as left to the Pres-
ident, wherever there is no prohibition. But the
power of appointment does not, in its nature,
comprehend the power of removal. These pow-
ers are not the same in essence. They are so dif-
ferent from each other as to be, in some cases,
very properlv vested in different persons. The
marshals in the several Judicial districts may ap-
point deputies ; but these deputies are removable
rom office at the pleasure of the judges. Under
:he Confederation, all officers of or under the rank
3f Colonel, for the Army of the United States, were
ippointed by authority of the respective States,
>ut were commissioned by Congress, and remov-
ible by sentence of a court martial. As it re-
spects Executive officers, however, it may be said
;hat the President should possess the power of re-
novaK because he is supposed to have the whole
Executive power, and is to take care that the laws
:>e faithfully executed by those officers. Although
[ do not question the general propriety of such
-easonin^, yet I may ask, whether Congress may
3ot regulate the tenure of any Executive office
which they establish? Where is the clause in
:he Constitution to restrain them from doing this?
But after what has been done with respect to the
leads of the several Executive departments, if the
aw establishing any Executive office is silent on
:his subject, the power of removal may be consider-
ed as resulting to the President by admitted con-
struction. It is no part, however, of the Execu-
ive power, as such, nor does it concern the proper
)ffice of the President to remove any of the judges
)f the United States.
The gentleman from Virginia would have us
)elieve, that the tenure *^ during good behaviour,"
is mentioned in the Constitution, has reference
iolely to the President of the United States. He
las attempted to show, by his remarks on the
word hold, that the judges hold their offices under
the President. Now, it this doctrine can be com-
pletely refuted, the argument fails. Let us examine
the Constitution. Ifthe terms '^ shall hold their
offices during good behaviour," as used in the first
section of the third article, are to be understood
iccording to the use of terms in other parts of the
Constitution, it is evident to demonstration, that
:he judges hold their offices, not under the Presi-
lent, but under the United States. In article first,
section third, clause seventh, speaking of judg-
ment in cases of impeachment, mention is made
of ^' disqualification to hold any office of honor,
trust, or profit, under the Unitea States." In the
same article, section sixth, clause second, *** no per-
son holding any office under the United States,
shall be a member of either House during his con-
tinuance in office." In the same article, section
ninth, clause seventh, ^*no person, holding any
office of trust under them (the United Statet«) shall,
without the consent of the Congress, accept of any
present, emolument, dffice or title of any kind what-
ever, from any King, Prince or foreign State." In
article second, section first, clause second "no per-
son holding an office of trust or profit under the
United States, shall be appointed an elector." In
article sixth, clause third, ^* no religious test shall
ever be required as a qualification to any office of
public trust under the United States." Whenever
the Constitution speaks of holding an office, and
mentions under whom, it is invariably mentioned
as being holden under the United States. The
officers themselves are uniformly styled officers
of the United States, and not of the President. In
article second, section second, clause second, men-
tion is made of judges and other officers of the
United States. In the same article, section third,
the President ** shall commission all the officers of
the United States." In article sixth, clause third,
^*all Executive and Judicial officers, both of the
United States and of the several States, shall be
bound, by oath or affirmation, to support this Con-
stitution." The third article says, "the judges
shall hold their offices during good behavioul"."
And the second article says, " the Executive power
shall be vested in a President of the United States
of America. He shall hold his office during the
term of four years." If all offices are holden under
the President, under whom does he hold his office ?
As it respects the power under which their offices
are holden. the Constitution speaks of the judges
and of the President, in precisely the same terms.
According to the manifest principles of the Con-
stitution, they all hold their offices under the Uni-
ted States.
In England the principle is different. There
everything, every office, all landed property, pub-
lic and private, is supposed to be holden of and
under the the Monarch, because he is regarded as
the Sovereign. There the doctrine of feudal ten-
ure pievails; and, according to' this, the whole
realm is considered as holden of the Monarch.
But it is a novel opinion, that, notwithstanding
the express language of the Constitution on this
subject, the feudal prerogatives of the British
Monarchy are to be adopted as the rule for con-
struing the powers of the President of the United
Slates. I had before supposed, that the principle
of tenure in this country, since the establishment
of independence, was essentially different from
that in England. I had supposed that the doc-
trine of allodial tenure was the true doctrine here,
and that the landed proprietors in the United States
were regarded, by the Constitution and laws, as
the lords of the soil. Such I know is the declared
principle of tenure in one of the States. Is it to
915
HISTORY OP CONGRESS.
916
H. OP R.
Judiciary System,
March. Wt
be now assumed as a rule of construction in this
House, that the President of the United States,
like the Monarch of Great Britain, is clothed with
sovereign power ? Where then is the Sovereignty
of the United States?
The Sovereign in this country is not the Presi-
dent, but the great body of the citizens, the whole
people of the United States. This is the inaport
of tne Constitution. The result of the principle
is, that all offices are holden under the people, who
have ordained a Constitution, in order to establish
justice, and have declared it'lto be their will, that
the judges shall hold their offices by the tenure of
good behaviour. The first words in the Constitu-
tion, " We the people of the United States," and
every succeeding part of it, may be cited to prove,
that all the powers of this Government have orig-
inated from the people, and that the offices of
those in power are all holden under the people as
sovereie^n.
Gentlemen have dwelt on the word services, as
used in the Constitution, with respect to the judges:
to whom are these services to be rendered? Are
they to be rendered to the President, as feudal lord
paramount? Or are they to be rendered to the
United States, for the public good ? Whose judg-
es are they? By whose authority do they sit in
judgment? In administering justice the judges
of the United States render their services to the
people.
In England the principle and language of the
(Government are dififerent. From the Crown are
supposed to be derived power, honor, office, and
privilege. According to the feudal principle, the
Monarch was regarded as the General, the Legis-
lator, and the universal Magistrate of the realm.
Even to this day the style of acts of Parliament
has reference to the Legislative powers of the
Crown. ^^May it please your Majesty, that it be
enacted, and be it enacted by the Sling's most ex-
cellent Majesty, by and with the advice and con*
sent of the Lords and Commons in Parliament as-
sembled." His Majesty's army, his Majesty's Par-
liament, his Majesty's judges, his Majesty's offi-
cers, his Majesty's revenue, the accustomed forms
of language, all have reference to the feudal pre-
rogatives of the Monarch. Are gentlemen dispos-
ed to imitate all this with respect to the President?
And must we now learn to say, the President's
army, the President's judges, the President's
officers? 4
If gentlemen are not prepared to go so far as
this, the argument about the doctrine of tenure,
which has been founded upon the supposed tech-
nical import of the term hold, must be given up.
And if they stop short of attributing sovereign
power to the President^ and should wish to avail
themselves of the doctrine of subinfeudation, their
British precedents utterly fail them ; for it was the
law of England, as early as the reign of Edward
the First, that in cases of feoffment the feoffee
should hold only of the chief lord of the fee. and
has ever ^ince been the law. Any idea of regard-
ing the President as a sort of intermediate lord,
therefore, is inadmissible in the present case.
Indeed, the whole argument drawn from the |
practice under the British monarchy is iDco&r!;r
sive, even upon the principles of that Goveroniei
It is contended, in favor of the present IniLtk
the same power which can create a Judicial c&t
may destroy it at pleasure, and thereby depnr!
the judge of his office. And thence geDiJ^tsti
would have it inferred, that the office of circa:!
judge, which was established by act of CoQgrc«
may be rightfully abolished by enacting the pns-
ent bill. But the Constitution has directed. iw
the judges of the inferior courts, as well isib»
of the Supreme Court, shall hold their office iis>
ing ^ood behaviour. Gentlemen, therefoit, gift
to this part of the Constitution a constructioB x-
commodated to their own purposes, andsaf.th&
it has reference solely to the President's power si
appointing and removing officers, and nottoiiie
power by which offices may be established. T!L!i
IS the scope of the argument. Let us now tr?!:
according to English principles, on which ik
gentlemen so much rely for the support of tit
cause.
In England, according to Sir William Black-
stone^ the ** King is considered as the founiaio d
' justice. The Judicial authority has iromecon'
* allv been exercised by the Kin^orhissubs!ii.ieL
^ All jurisdiction of courts are either mediat&Tot
' immediately derived from the Crown." Ofca-
sequence, the Judicial proceedings are heldbiri
Maiesty's name, and all delegations of Jadkiil
authority are regarded as grams flowing frontkt
royal prerogative. The whole of the royal p
rogative is considered as a family estate, descend-
able to the heirs of the blood royal. It partx-
pates of the nature of an entertainment; aodik
Nfonarch, for the time being, is accordioglT e
ffarded as having an estate in the prerogative t^:
for his own life. It is, too, an acknowledged pri-
ciple, that a person who has an estate oDlyfff^'
own life, cannot make a grant of any inrtofi:
which shall be valid for a longer time. Ifix
should make a grant for the life of anotber.frL
upon his decease, the person next in expectu^f
becomes entitled to the whole estate. ThUi^
serves to explain the doctrine, that all Jodicft^
processes were abated, and all commissions ^
continued by the demise of the Crown. T)if«
and other public inconveniences, resulted frtc
the principle, that a reigning monarch badanc^
tate in the prerogative but for his own lift. aa^
that he could not alienate any part of ii to i>>i
prejudice of his lineal heir?. The interpositioa ci
Parliament was therefore esteemed requisite »^
enable the King to make grants of JudiciiUB-
thority, which should be valid after his decease.
These, indeed^ are not the doctrines of our C«-
stitution. But, if they were, they would Dotis-
thorize the measure now proposed. In Eoglai-
the power which erects courts of judicature, u|
establishes Judicial offices, cannot aboliihtliecf
fices at pleasure. This power is aniforrulf^
knowledged to be controlled in every case wbef*
the judges hold their offices during good bekj-
viour. Speaking of the King, Sir William Bla^-
stone says : *• He has alone the right of erec(i«|
courts of judicature." This cleaxTy renilts froo
H7
HISTORY OF CONGRESS.
918
^ARCH. 1802.
Judiciary System.
H.ofR.
lis being considered as the fountain oF justice. It
5 at the same lime within his power to determine
\rltat number of judges shall compose any of the
ourts. This is but conformable to the principle,
hat he is the fountain of honor and of office. It
3, in fact, his acknowledged prerogative, to Cre-
te Judicial offices by his grants, which are mat-
er of public record. These grants, or letters pat-
nt^ must pass by bill, prepared by the attorney
nd solicitor general. And yet it is indisputably
he law of England, that the offices of the judges
anoot be abolished at pleasure by the same power
vhich established them. The offices cannot be
bolished while the judges behave themselves well.
Phis is settled by the statute, (12 and 13 William
II. c. 2,) ''For the farther limitation of the
^rown. and better securing the rights and liber-
ies of the subject*" From its relation to the
>own, this statute, of course, forms a part of what
s called the Constitution of England. There is,
he re fore, a strong analogy between the two cases.
\fter limiting the succession to the Crown in the
'rotestant line, the statute contains various pro*
isions which were deemed of importance to the
iberties of the realm. One relates to the judg^es;
t directs that their commissions, after the limita-
ion should take effect, be made quamdiu bene se
resserint^ and their salaries ascertained and es-
ablished.
Since that time it has been the settled princi-
ile, that the power by which the offices of the
udges are established, cannot constitutionally
i)oIish them during the life of the judges, respect-
vely, unless there should be a forfeiture by breach
>f the condition of good behaviour. This gives
o the judges a title to exercise Judicial power,
md to receive determinate salaries. But the pro-
visions respecting the judges were not deemed
iufficient ; for the King, having an estate in the
)rerogative but for his own life, was not consid-
ered as having the power to make a valid grant
)f any part of the prerogative of his successor. A
ubsequent statute was therefore passed, (l.Creorge
II., c. 23,) in relation to the commissions and
lalaries of the judges. By this statute provision
vas made, that the commissions of judges should
>e in full force during their good behaviour, not
vithstanding any demise of the Crown, and that
heir salaries should be paid so long as the pat-
ints or commissions should continue in force; and
he funds were designated out of which ithe sala-
ies were to be paid after the King's demise.
The Constitution of the United States was, un-
loubtedly, framed with a view to the provisions
>f the two statutes. But there is reason to be-
ieve it was intended to give to the judges of the
United States a greater stability in office than it
secured to the English judges. In England, ac-
cording to both the statutes, any of the Judges
ijay be removed, upon the address of both Houses
>f Parliament. The amount of this is, that the
;wo Houses of the Legislature, tosrethtT with the
Szecuii ve, may divest a judge of his office. There
s no such provision in our Constitution ; but this
>mission did not result from inattention to the
iubject. From a message of the first President of
the United States to the House of Representatives,
in the year 179(5, it appear:; that he had deposited
the Journal of the General Convention in the of-
fice of the Department of State. The President
referred the House to a vote which appeared on
that Journal respecting the power of treaties, and
alluded to the security of the smaller Slates under
the Constitution, which he considered as being
the result of a spirit of mutual concession. On
examining the Journal, it is found that a motion
was made in the Convention to this effect, that
the judges might be removed by the Executive,
on application of the Senate and House of Rep-
resentatives. On taking the question by Slates,
the motion was explicitly rejected. And yet, if
the present bill should be passed by both Houses
of Congress, and presented to the President, is not
this, in principle and effect, an application to the
Executive for the removal of the judges?
Evidence too may be found, which goes to dis-
prove the doctrine, that the tenure during good
behaviour has reference solely to the power of the
President, with respect to appointments and re-
movals. Among the documents deposited in the
Office of State, there is a printed draught of a form
of Government for the United States. From this
it appears that the Convention had agreed that
the judges of the Supreme Court should be ap-
pointed by the Senate, although they were to be
commissioned by the President, and should hold
their offices during good behaviour. In this case,
the terms '^during good behaviour," could not be
intended to guard the judges against anv supposed
power of the President to remove, for ne had not
the power to appoint. These facts any member
of this House may ascertain for himself at the Of-
fice of State. They are decisive as to the opinion
entertained by the General Convention in 1787,
and prove it to have been the reverse of the con-
struction now attempted to be given to the Con-
stitution.
Much has been said about the principle of re-
sponsibility, as if that could vindicate the passa^
of the present bill. The true principle upon this
subject, sir, is that of personal responsibility. But
where do the gentlemen find their doctrine of a
collective responsibility ? The President is person-
ally responsible ; but not the Executive authority,
as such, for this is one of the three integral de-
partments of Government. The members of Con-
gress are personally responsible ; but not the col-
lective body. So the judges, as individuals, are
responsible; but there is no such thing in the
Constitution as a collective responsibility of the
whole body of judges.
The President, indeed, may put his negative
upon acts of Congress. The Senate may refuse
to advise and consent to an appointment where
the President has made a nomination. The Ju-
diciary may say, that unconstitutional acts are not
obligatory. But these powers of the respective
departments in relation to each other, are not what
is meant by this principle of respon.sibility. The
President is responsible on impeachment and at
elections. The members of Congress are respoa-
kible at elections, if not on impeachment. The
919
HISTORY OF CONGRESS.
H. OP R.
Judiciary System.
MlBGB. W^
Judges individually are responsible on impeach-
ment, where they may claim the right of justify-
ing themselves against any accusers ; as to them,
there are no periodical elections. The principle
of responsibility is applicahle where persons can
meet and answer the charges which may be made
against them for their official conduct. This may
be done by gentlemen, if they think proper, at
elections, particularly where such proceedings are
customary ; they may know the time and place
for hearing, and for deciding as to their conduct;
and they may prepare their answers to char^res,
however vaguely exhibited. Incases of impeach-
ment, there are formed articles of charge, a regu-
lar trial, and ample opportunity for defence. But,
upon the plan of the present hill, the judges are to
be divested of their offices, without being either
accused or heard. The bill strikes at the collect-
ive body, under a vague idea of their being re-
sponsible ; and yet there is not a single charge
against them, and if there were, they have no op-
portunity of answering for themselves, before the
men who undertake to decide against them. —
There is nothing in the Constitution to warrant
such a responsibility as this.
The gentleman from Vermont, (Mr. I. Smith,)
spoke of the acknowledged power of impeachment
as rendering it vain to talk of the independence o/
judges. He appeared to consider such a respon-
sibility as destructive of this independence. Ano-
ther advocate of the bill, a gentleman from Vir-
ginia, (Mr. Randolph,) spoke of the responsibility
of impeachment as amounting to nothing in prac-
tice. To arrive at a just conclusion, it may be
proper to take an intermediate course between
these two extremes of opinion. When we speak
of an independent Judiciary, the correct meaning
is. that this department should not be particularly
dependent for existence on the Executive or on
the Legislature. This relative independence is
perfectly consistent with the principle of personal
responsibility. With respect to the departments
of Government, their general independence of each
other is a common security of them all. But the
several judges, individually, ought to be responsi-
ble on impeachment for ill behaviour. The mere
act of impeachment does not destroy the reputa-
tion. A person might be impeached for party
purposes; officers have been dismissed on this ac-
count; but no man can say, with justice, that
they merit reproach merely for this.
It is a decisive reason against admitting the
power now claimed over the Judiciary, if they are
to judge whether the acts of Congress are con-
formable to the Constitution. This, however, has
been denied by several of the gentlemen who ad-
vocate the present bill. It is said, that this ques-
tion must be decided hy Congress. And gentle-
men would now decide, for the first time, that the
Constitutional validity of the acts of Congress is
to be determined only by the result of elections;
and that the judges, as composing a Constitu-
tional department, have nothing to do with such
questions. We say, if Congress can pass any
acts at pleasure, and there can be no judicial opin-
ion as to their validity, Congress might destroy
the Supreme Court altogether. As to this pen
of destroying judges, there is nodiffereDccio*^
principle, between those of the SupremeaDdtit.i
of inferior courts. The offices of the iostiee*:
the Supreme Court have been established brr
of Congress. That act may be totally repniks
well as the act now in question. The presesiL
therefore, in its principle^ is a claim of porer j
Congress to divest the judp^es of the Sopifj?
Court of their offices. This is a more ati.-^
claim of power than has been advaDceti hihi
Whatever may have been said of former adi&iiv
trations,they never claimed to command tbewku-
powers of the Government through the L^i£-
tive body. Whatever might be said on tkeoibf
topics, whatever questions might be madea'>,:
the constitutionality of nneasures, there wa«n
principle constantly admitted; and thatvai'
consider the judges of the United States, wj?
behaving well, as placed beyond therraciib;^
of the Legislature and the President. Thkri'^
a security to all parts of the community, ap:^
unconstitutional measures. Forthe judgn^ȣ;
independent of the Legislative and Execotirf ^
pactments, might, in the faithful discharge ci('i:fii
duty, refuse to give effect to acts con trav€i3Lr?iij«
Constitution. It was not pretended, that Con-
gress, with the President, were aathori»3. s-
pleasure, to deprive the judges of the mos}^
subsistence, by abolishing their offices.
It is for the judses faithfully^ to administer p-
tice according to the Constitution aod laws. .N
menacing power should exist to bias their <^
sions by the influence of personal hopes and fa-?
They are undoubtedly to give effect to actsol'Cv:-
gress in pursuance of the Constitution. B>iti?
Constitution, which granted to Congress ir-
Legislative powers, is the supreme law; afl^ -
judges, from the very nature of the case. d»'
pronounce on the validity of acts of Congre^ii^
compared with the imperative provisioDs cf :*?
Constitution. When they are called to dwt^J
cause, if they find on the one side an act of Ci^
gress, and, on the other, the Constitution c: I'J
United States, when they find these placed iai:-
position to each other, what is their daiy? ^';
they not to obey their oath, and judge att.^f^
ingly? If so, they necessarily decide, thaiy^
act IS of no force ; for they are sworn to scf^*^
the Constitution.
This is a doctrine coeval with the existcuft^
our Government, and has been the uDiformfn>
ciple of all the constituted authorities. Tiie^'^
temporaneous use of terms, the undisputed ^'
tice under the Constitution, have settled ihep^
ciple. These determine the sense of the Cuti
tution, bjr which we should now be guided.
Sir, it is not a new opinion in this country,*^
the judges have authority to decide agaip*'^
act of Congress, if unconstitutional. This *i>
the opinion which was practised upon in ih<}j-
1792. A question arose from the act of ihf -^
of March, 1792, respecting invalids. Theacit^
been mentioned already. The judges in theis?"
circuits determined it was unconstiiotionaU-
communicated their opinion to the first Pre^<^
)21
HISTORY OF CONGRESS.
922
ilARCH, 1802.
Judiciary System.
H. opR.
)f the United States, who laid the subject before
Uongress.
From the journals of the House it appears, that
he President sent a Message, on the 16th of April,
[792, with a statement of the opinion of the judges
ittending the circuit court in New York.
The statement, as sent to the House by the Pre-
ident, has been found in the Clerk's office. It is
I copy, certified by Tobias Lear, Secretary to the
'resident of the Onited States.
" At a sUted circuit court of the United States, held
or the district of New York, at the city of New York,
>n Thursday, the fifth day of April, one thousand
even hundred and ninety-two, at ten of the dock anti-
aeridian :
"Present — ^The honorable John Jay, E«q., Chief
Justice of the United States, the honorable William
Pushing, Esq,, one of the associate justices of the Su-
preme Court of the United States ; the honorable James
>uane, Esq., judge of the district of New York.
" The court proceeded to take into consideration the
oUowing act of the Congress of the United States,
'iz : * An act to provide for the settlement of the claims
»f widows and orphans, barred by the limitations here-
ofore established, and to regulate the claims to invalid
tensions.
»
The act, which is that of the 23d of March,
792, is then recited at full length. It is unneces-
ary to repeat it now ; and I will proceed to the
ipinion of the court.
<* The court were thereupon unanimously of opinion,
nd ag^ed,
" That, by the Constitution of the United States, the
government thereof is divided into three distinct and
adependent branches ; and that it is the duty of each
o abstain from, and oppose encroachments on either.
'^That neither the Legislative nor the Executive
ranches can constitutionally assign to the Judicial any
luties, but such as are properly judicial, and to be per-
ormed in a judicial manner.
" That the duties assigned to the circuit courts, by
his act, are not of this description, and that the act
tself does not appear to contemplate them as such ;
nasmuch as it subjects the decisions of these courts,
aade pursuant to those duties, first to the considera-
ion and suspension of the Secretary at War, and then
o the revision of the Legislature: whereas, by the
^Constitution, neither the Secretary at War, nor any
tther Executive officer, nor even the Legislature, are
uthorized to sit as a court of errors on the judicial
icts or opinions of this court.
" As, therefore, the business assigned to this court,
ly the act, is not judicial, nor directed to be jperformed
adicially, the act can only be considered as appointing
Commissioners, for the purposes mentioned in it, by
>fficial instead of personal descriptions.
" That the judges of this court regard themselves as
>eing the Commissioners designated by the act, and
herefore as being at liberty to accept or to decline that
>ffice.
" l*hat, as the objects of this act are exceedingly
>enevoIent, and do real honor to the humanity and
ustice of Congress, and as the judges desire to mani-
iest, on all proper occasions and in every proper man-
ler, their high respect for the National Legislature,
hey will execute Uiis act in the capacity of Commuh
ttoners."
The remainder of the opinion relates toeitend-
ing the session of the court for the term of five
days, and need not be read at this time. The
judges agreed, that the Legislature had a right to
extend tne session, and that the direction of the
act. as to this particular, ought to be observed.
On the 21st of April, 1792, the President sent
another Message, with the copy of a letter, com-
municating the opinion of the judges attending
the circuit court in Pennsylvania.
I have the copy as laid before this House. Per-
mit me to read it :
^ Philadxlfhia, April 18, 1792.
<' Sib : To you it officially belongs, to * take care that
the laws' of the United States ' be faithfully executed.'
Before you, therefore, we think it our duty to lay the
sentiments which, on a late painful occasion, governed
us with regard to an act passed by the Legislature of
the Union.
" The people of the United States have vested in
Congress all Legislative powers ' granted' in the Con-
stitution.
" They have vested in one Supreme Court, and in
such inferior courts as the Congress shall establish,
* the Judicial power of the United States.'
"It is worthy of remark, that, in Congress, the
whole Legislative power of the United States is not
vested. An important part of that power was exer-
cised by the people themselves, when they * ordained
and established the Constitution.'
" This Constitution is ' the supreme law of the land.'
This supreme law, ' all judicial officers of the United
States are bound, by oath or affirmation, to support'
" It is a principle important to freedom, that, in Grov-
emment, the Judicial should be distinct from, and inde-
pendent of the Legislative Department. To this im-
portant principle the people of the United States, in
forming their Constitution, have manifested the highest
regard.
** They have placed their Judicial power not in Con-
gress but in courts. They have ordained that the
* judges' of those courts 'shall hold their offices during
good behaviour ;' and that, < during their continuance
in office, their salaries shall not be diminished.'
" Congress have lately passed an act * to regulate,'
among other things, ' the claims to invalid pensions.'
*' Upon due consideration we have been unanimously
of opinion, that, under this act, the circuit court held
for the Pennsylvania district could not proceed :
** 1. Because the business directed by this act is not
of a judicial nature. It forms no part of the power
vested by the Constitution in the courts of the United
States, the circuit must consequently have proceeded
without Constitutional authority.
« 2. Because, if, upon that business, the court had
proceeded, its judgments (for its opinions are its judg-
ments) might, under the same act, have been revised
and controlled by the Legislature, and by an officer in
the Executive Department. Such revision and control
we deemed radically inconsistent with the independence
of that Judicial power which is vested in the courts, and
consequently with that important principle which is
so strictly observed by the Constitution of the United
Stotes.
" These, sir, are the reasons of our conduct. Be as-
sured, that though it became necessary, it was far from
being pleasant. To be obliged to act contrary, eiUier
to the obvious direction of Congress, or to a Constitu-
tional principle, in our judgment equally obvious, ex-
923
HISTORY OF CONGRESS.
921
H. OP R.
Judiciary System.
Mabcb. IS^l:*
cited feelings in ns. which we hope never to experience
again. We have the honor to be, with the most per-
fect consideration and respect, sir, your most obedient
and very humble servants,
" JAMES WILSON,
"JOHN BLAIR,
"RICHARD PETERS.
" The Pbesidxnt of the Ukited States."
On the 7lh of November, 1792, the President
sent a farther Message, communicaling the opin-
ion of the judges attending the circuit court in
North Carolina. Their opinion was against the
act as being unconstitutional. The reasons for
this opinion were given in a letter addressed to
the President. I have before me the copy of the
letter as it was sent by (he President to this House.
It is dated "Newbein. North Carolina, June 8,
1792." It is signed '* Ja. Iredell, one of the asso-
ciate justices of the Supreme Court of the United
States; Joo. Sitgreaves, Judge of the United
States, for the Norih Carolina district."
The reasons for their opinions against the act
are stated at considerable length. The opinion of
these judges is substantially to the same effect
with that of the judges in the two other circuits.
A part of the letter may be read, notwithstanding
the lateness of the hour. In assigning their rea-
sons for being against the act as unconstitutional,
it is the first position :
" That the Legislative, Executive, and Judicial de-
partments are each formed in a separate and independ-
ent manner, and that the ultimate basis of each is the
Constitution only ; within the limita of which each de-
partment can alone justify any act of authority."
The question, if any question could be made
about the authority of the judges to decide re-
specting the unconstitntionalitjr of the acts of the
Legislature, was now placed directly before Con-
gress and the first President of the United States.
What was done by them on this subject? An-
other act relative to invalids was passed by Con-
gress and approved by the President on the 28th
of February, 1793. This act prescribed new reg-
ulations for ascertainioj? the claims to invalid
pensions. And the thircf section directed that no
person who was not on the pension list before the
23d of March, 1792, should be entitled to a pen-
sion unless he complied with these regulations. It
contained, however, a clause for saving to all per-
sons their rights, founded upon legal adjudications
under the former act. And there is one provision
in the same section which is particularly observ-
able as it respects the present question. It is in
these words :
^ It shall be the duty of the SeereCaiy at War, in
conjunction with the Attorney General, to take such
measures as may be necessary to obtain an adjudication
of the Supreme Court of the United States on the va-
Udi^ of any such righto, claimed under the act aforesaid,
by the determination of certain persons styling them-
selves Commissioners."
The force of this provision will be instantly per-
ceived on recollecting that the judges in some of
the crrcuits had agreed to act as Uommissioners
under the act of the 23d of March, 1792.
We will now attend to what was done in con-
sequence of the injunction laid on the SecrfU^
of War by this second act nspecling inrsiJi
From the Journals of the House it appear:^ <i.;
the Secretary made his report to, Congre&j ca vjt
21st of February, 1791. The original report ^s
been filed in the Clerk's office.
Wah DBFABTXBirr, Feb. 21, ITSi
The Secretary of War respectfully repoftt ta *j
Senate and House of Representatives of the lVi»:
Sutes:
That, by the act passed the last sesnon of Coesr&
entitled '*An act to regulate the claims to iovali^ pa*
sions," it was made the duty of the Secretary at %k
in conjunction with the Attorney General, ** to ti:
such measures as might be necessary to obtain n: i>
judication of the Supreme Court of the United Sun
on the validity of the rights claimed by invalids (i&ir
the act, entitled *An act to provide for the sfttkmeatfl
the claims of the widows and orphans barred b; 'hA
limitations heretofore estabtished, and to rebate "st
claims to invalid pensions,' passed March 33d, 179: |
by the determination of certain peisonst styling tka*
selves Commissioners."
That, in obedience to the said act, an nnsoocesErJ
attempt was made in August last, to obtain an ad[,^>
cation of the Supreme Court upon the claiiDs U \1a
said invalids, as will appear by the report of iht Axiar-
ney General, herewith submitted. No. 1.
That such adjudication, however, has been rno^H
obtained, and that the determinations of the C<mkb>
sioners were held to convey no legal righta to the a
valids claiming under them, as will appear by ibr tr-
port of the Attorney General, hereunto annexed. N«-t
All which is humbly submitted to the Seaate a
House of Representatives of the United States.
H. KNOX, Seerftmr^ ^ VTv.
No. 1. — Cofpy of a letter from the Atiomev Cenere.'-.
the United States to the Secretary of War, dan^
Phii.adxi.phia, August 9, ITV^
Sib : In consequence of our arFangement, I
the Supreme Court of the United States on
last for a mandamus to be directed to yon, as dccreo*
ry of War, commanding you to put on the yewdamht
one of those who had been approved by Uie jf^fv-
acting in the character of CommissioneiB. The tfo>
sion of one case would have involved every other. Ic
two of the judges having expressed their disindtBaitx
to hear a motion in behalf of a man who had ■«« ea
ployed me for that purpose, and I being iinwilfils s
embarrass a great question with little intnifliaos.i
seemed best to waive the motion until some of te i&>
valids themselves should speak to counsel. To ife
end I beg leave to suggest the propriety of a tetter 6?3
your office to such of the invalids as have been eer.-
fied to be proper for pensions, and perhaps it may >
well to intimate the turn which the affidr has taut
and I have just mentioned. It was very onlocky t^±*
although one of the invalids was in court whea \ nad
the motion, and heard the difiiculty, he omitted to e>
tify himself to me until the court had risen, and it v»
too late. I have the honor to be, dcc^
EDM. RANDOLPH
No. 2,^Report of the Attorney General to the Secrti^
ry of War, dated
Philadklfhia, February 17, 1794.
Sia : I have to report that, in consequence of
sores taken to obtain a decision of the 8npi
925
HISTORY OF CONGRESS.
926
March, 1802.
Judiciary System.
H. opR.
of the United States opon the validity of the adjudica-
tions of certain persons styling themselves Commis-
sioners under the act of the 23d of March, 1792, the
court has this day determined (in the case of Yale
Tod) that such adjudications are not valid.
I have the honor to be, with great regard, sir, your
most obedient servant,
WM. BRADFORD.
The SscKSTAHT or Was.
We here find that the authority of the judges
to decide questioDst arisin^if under the Constiiution
was fully recognised. Tlie first President of the
United States, the Congress, and the Judges of the
Supreme Court, all sanctioned the opinion by
their official proceedings. And it is well known
that many of them were members of the General
Convention or of State Conrentions, which agreed
to the Constitution.
In 1796, the authority of the judges to decide as
to the constitutionality of acts of Congress was
further recognised. A question respecting the
constitutionality of the act laying a duty on plea-
surable carriages, was brought forward from Vir-
ginia. The Attorney General of the United
States for that district had filed a bill in the cir-
cuit court against Daniel Lawrence Hylton for
not paying the duties on a number of carriages,
as required by the act. The material facts in the
cause were argued. The defence was, that the
Eict was unconstitutional. Judgment was render-
ed against the defendant in the circuit court. The
:ause was carried to the Supreme Court of the
United States by writ of error. I hare a certi-
ied extract from the minutes of the Supreme
Z^ourt, stating the whole proceedings before that
;ourt. The error, for wnich a reversal of the
udgment of the circuit court was prayed, was as-
iigned to be, *^ That judgment ought to have been
rendered for the defendant and not for the plain-
tiffs; whereas the same was rendered for the
plaintiffs, there being no law binding on the cit-
izens of the United States upon which the judg-
ment could be rendered." This assignment of
•rror shows that the constitutionality of the act
)f Congress was the point in controversy. But
f there could be any doubt as to the fact, it is
learly established by an agreement which appears
n file. It is in these words :
YiBoiHiA January 25, 1796.
•* I agree that the writ of error, ' Daniel L. Hylton
r. the United States,' which is now depending before
le Supreme Court of the United States, be heard and
etermined at the approaching session of that court. I
ertify this agreement, that the cause may not be con-
nued on my account ; my object in contesting the law
pen which tlie cause depends, being merely to ascer-
iin a Constitutional point, and not by any means to
clay the payment of a public duty.
«« DANIEL L. HYLTON."
The Supreme Court affirmed the judgment of
le circuit court in this cause, and thereby decided
1 favor of the validity of the act of Congress.
*hree gentlemen were engaged to assist the At-
>rney General as counsel in be half of the United
tates. One of these gentleman was from Vir-
ginia; another from Pennsylvania, and another
From New York. It was a cause of peculiar in-
terest and expectation. The Constitutional valid-
ity of an act of Congress for raising revenue, was
to receive a final decision before the highest court
in the United States.
On examining the annual statement of receipts
and expenditures for 1796, itappearsthat thesums
paid to the three gentlemen for their professional
assistance, amount to nearly a thousand dollars.
(The precise amount was nme hundred and sixty
dollars, sixty-six cents.) There is no room to
question that all this was well understood at the
time. The statement was printed and laid before
Confess. The payment to the gentleman from
Virgmia, (whose name is first mentioned in the
statement) is expressly said to be '* for his fees as
^ agreed with the Attorney General, for areuing
^ the cause before the Supreme Court in Febru*
' ary term, 1796, respecting the constitutionality
* of the act imposing duties on carriages."
You here find the principle was so fully admit-
ted, that the constitutionality of a revenue law
was submitted to the decision of the Supreme
Court ; and, with the full knowledge and sanc-
tion of Congress, the sum of nearly one thousand
dollars was paid to counsel, on behalf of the Uni*
ted States, for assisting the Attorney General in
defending the act as Constitutional.
The principle, therefore, which is now disputed,
has been settled for years. It is the established
principle of the Constitution.
What, tlien, is the question under debate ? It
is a question between the whole people of the
United States on the one part, and their delegated
authorities on the other. Shall the Constitution
continue to be what the whole American people
have made it, or shall it be whatever the Congress
and President may choose ?
Say gentlemen, Congress must be answerable
at the period oi elections. This is all admitted.
But why would you stake the whole control of
their power merelv on elections ? On our part it
is said, let there be all the security which elec-
tions can give ; but let there be at tne same time,
the further security of the judicial power. If
there can be no re^lar decision of Constitutional
questions by judicial authority, if there can be no
check except elections, what effectual check will
finally exist ? Why would you diminish the num-
ber of securities for the public liberty? This is
too precious to be exposed to needless hazard, by
abandoning any of the means established for its
preservation.
While I speak of liberty, sir, let me not be mis-
understood. I do not mean a liberty, the love of
which is nothing but a general hatred of control.
I mean the liberty which is guided by wisdom,
and venerates the maxims of mtegrity. This is
the liberty which should be valued as the politi-
cal pearl of great price. But it is said, no man
will consent to throw away bis liberty, and be a
slave. Would you therefore leave him no secu-
rity for his liberty except elections ? Ought there
to be no other Constitutional barrier against usur-
pation 7 Whence is it, that so many nations of
927
HISTORY OF CONGRESS.
9;
H. OF R.
Judiciary System,
Mabch. is.
the earth, after breaking their chaias have had
them riveted again? Others, before ourselves,
have had the right of elections; others have en-
joyed the fruit of their industry ; they have had
public virtue; they have had personal integrity
and wisdom. But to how many of them have
their liberties been lost ! The French had their
elections, perhaps as free as ours ; but we see they
have lost their liberty.
What, sir/is the fair import of this language
about elections ? The principle, as far as it is cor-
rect, can amount to no more than this, that the
majority should control the affairs of Government,
and that the elections ascertain the sense of this
majority. Apply then, the principle (o this House.
How are the Representatives apportioned among
the several States'? A majority of the whole
number of free inhabitants in the United States
do not elect a majority of the Representatives.
The owners of slaves, besides other advantages
allowed them in the Constitution, are privileged
to have a greater voice in elections than the tree
inhabitants who hold no persons in servitude.
The State which owns the greatest number of
slaves, derives a preponderating influence in this
House, from having the Representatives appor-
tioned according to the whole number of free in-
habitants, and three-fifths of the persons holden
in slavery.
Where then is the Constitutional security for
the States whose free inhabitants cultivate their
own soil, against the States where the tillage of
the earth is the task assigned to slaves 1 Com-
pare the multitude of slaves to the south of the
Delaware or Potomac, with the small number to
be found in the States north ! What is there to
counterbalance the advantage given to the States
where the slavery of the blacks is most prevalent ?
The Constitutional security is not to be found in
the result of elections, according to the present
rule of apportioning representatives. A security
might be found in a judicial body, composed of
men venerable for their virtues and talents, and
placed beyond the reach of this House.
For such a security the Constitution was under-
stood to have made provision, when it was rati-
fied in the several States. By what right can
you now rescind the compact?
Will gentlemen say, the Government cannot
go on if there should be this check against uncon-
stitutional acts ? This might be pronounced a bbld
assertion, when it is remembered, that the Gov-
ernment has gone on, and gone on for twelve
years, in the exercise of its acknowledged powers,
with this principle uniformly admitted in practice,
any of the people being at liberty as freemen to
object, in court, against any act as unconstitu-
tional; and vet laws have been enacted, and car-
ried into full effect.
If any unconstitutional act is passed, what must
be done for relief against it, according to the
plan of gentlemen who advocate the bill on the
table? Under all the disadvantages to which the
free inhabitants of certain States are liable, in con-
sequence of the number of representatives allowed
for three fifths of the slaves, will gentlemen ex-
plain in what mode any of those inhabitanuin
to obtain relief? Must persons be subjected •:
the operation of an unconstitutional act uatJi^
period of elections comes round, and in ilieiQ:v
time be sending from State to State witliari;^
to influence the electors not to vote for such re-
presentatives again ?
Instead of all this sufferance, instead of alltk^^
efforts, which may at length be found whollTia^
fectuai for obtaining redress, especially anderi'
present apportionment of representatives, whj^sa-
not the injured citizen appear before m^i::
upright judges, and present to them the Codsli:
tion of his country,and receive from their decide;
that relief to which he is justly entitled? Wiu
there are judges who are dependent on no pariy
but dependent on the fidelity with which theyc-
ercise their functions, men of learning aodrir
dom, who are placed under no bias fromp(r>;::
in power, but act according to the impulse of djti
alone, I should suppose that they might betru^^
to expound your laws, and ^uard the Cooiiiii'
tion. Such an establishment is every man's ^ji^
against despotism. It is the protection of integ-
rity against violence. It affords a corens^is^
the tempest of party. It is the strengiln« e-'^
feeble against the mighty. Here the hoaaJau
might appear with confidence, assured tbat<£tr;2i
and in judgment, truth and justice, and these s^:3t
will prevail. Although covered by political cbc-
or, with the opprobrium of guilt, while mer.t:i?
by his conduct the honors of virtue, he ffiii"'-
stand alone, strong in his innocence, and piiti^
confusion a host of accusers.
Yet such an establishment is what i« now pj:^-
plained of as an evil. Those who make ihe k"--
plaint, indeed come forward in the humble pi^'
of respect for the wishes of the people, and clia
to hold a control at pleasure over the judges. 3::
who are such novices as to be regardless oi '^•
event of compliance with their viewa ? W^f-
gentlemen arrogate to themselves a power ne^?
claimed before in the United States, it oogii:;'
teach them, and others, to be cautious. Gei^^
men at least ought to hesitate, and reflecU^'
those who framed and adopted the Constlnii-^'.
and have practised under it, knew soraethinp
its true import. If it is now supposed doubtf^'"^
this subject^ where should we look for the r:^
of construction, if not to contemporaneoai cp
ions and usage ? Usage forms the standard oi «'•
guage. And whatever might be thought olts-
phraseology of the Constitution if now imroj-^
ed for the first time, yet the sense in whicbiJ'
known to have been understood, when adopf«^
and a period of years immediately subsequeDu^
that sense of the Constitution which t^»^ Pf *
of the United States have ratified, and wbiw"
are bound to support.
A number of interesting questions might w*^,*
pected to arise, when the Constitution wasforof^
They were to be expected from the nature oj
system intended to unite in one Gofernmec
variety of States, each of w^ich were to re^
their particular powers. When the system chao,
from the terms of the Confederation to tflo^'
929
HISTORY OF CONGRESS.
930
March, 1802.
Judiciary System,
H. OP R.
the CoDstitutionj the riches and the forces of the
United States were to be placed directly within
the command of the Grovernment ; and the several
States were no longer to have an equal voice in
Congress, as before. But there were, at the same
time, various restrictive provisions in the Constitu-
tion, which appear framed to guard against evils
which might be apprehended from the change of
system. Restrictions were imposed on the pow-
ers of Congress, and the respective States. Some
of the restrictions, undoubtedly, were to guard in-
dividuals against public oppression ; and some, to
guard the particular States against the Govern-
ment of the United States, or against each other.
Controversies were known to exist between par-
ticular States, and others might be expected to
arise, as well as controversies between a State
and the United Slates. The parties in such con-
troversies would be powerful; each might put
armed forces in motion. When provision was
to be made for questions of this nature, who could
hesitate to acknowledge the importance of estab-
lishing an impartial tribunal, beyond the imme-
diate control of either party ? A tribunal, the
constitution of which might inspire general con-
fidence, and thereby prevent the recourse to a very
different mode of deciding conflicting pretensions.
And how were the restrictions on the powers of
Congress to be rendered effectual, except by the
intervention of such a tribunal ? In what other
mode could a fair construction of the Constitu-
tion be uniformly secured to the respective citi-
zens and to the several States? This impartial
tribunal, independent of party, and placed beyond
suspicion of undue influence, should be formed
into a Supreme Court, vested by the Constitution
with power to decide in the last resort. Will you
say that Congress may give a construction to the
Constitution ? So, too, a State Legislature may
give it; and there might be as many constructions
as there are State Legislatures. xVill you then
say, that the State Legislatures shall submit with-
out reserve, to any construction that may be given
by Congress ? The members of the State Legis-
latures are bound to support the Constitution;
and may they not iudge of their duty as well as
yourselves? Will you force them to submit?
Remember the particular States divide the power
of the militia with the Government of the United
States. With respect to the acts of Congress, and
of the State Legislatures, as compared with the
Constitution, and with respect to the acts of par-
ticular States, when in opposition to each other,
who shall decide questions so interesting as these?
The Constitution has provided for bavins them
determined by a Supreme Court of the United
States. But if this court can be put down at plea-
sure by Congress, if the judges of the United
States can be divested of office as often as parties
change, what will be said by the several States?
Will they not be naturally led to attend to the
great disproportion between States, and the con-
sequent power of one over the other ? Virginia,
for example, is extensive, and to add to her influ-
ence in this House, there are to be representatives
allowed for three-iifkhs of the slaves. With all
7th Con .-—30
the preponderance of such a State, could a small
State place a reliance on the decisions of this
House, where the interests of the two States
should be in competition? So, too, if a judicial
controversy should arise between the prepondera-
tino^ State and one of the smaller members of the
Union, will the small State have equal confidence
in the decision of the judges, if they may at any
time be divested of office by act of Congress ? No,
sir ! In common sense it will be understood, that
the power which may displace the judges at plea-
sure, and thereby deprive themof subsistence, can
be master of the decisions. Establish then the
principle of this bill, and who will be the lords of
the Judiciary? If this principle should be ulti-
mately established, you may look for such lords
to the south of the Potomac — you may look for
them among the masters of the three hundred
thousand slaves that stock the plantations of
Virginia.
The establishment of an impartial tribunal to
decide on the fundamental principles of the Gov-
ernment, is totally unknown under the British
monarchy. The opinion of Sir William Black-
stone is express, that in one and the same nation
when the fundamental principles of their common
union are supposed to be invaded, the only tribu-
nal to which the complainants can appeal is that
of the God of battles ; the only process by which
the appeal can be carried on is that of intestine
war. Sir. it was because there was no such im-
partial triounal to check the progress of usurpa-
tion, that the appeals to arms have been made in
England, and '^ one monarch was sent to the hcaf-
fold, and another was hurled from his throne."
It was not to weep over a fallen monarch, that
these examples were mentioned by my friend
from North Carolina (Mr.STANLEV.) It was to
seize the spirit of history, and to remind us of
the instruction to be derived from its admoni-
tions. It was to prove, that when there are great
and powerful parties in a country, with arms at
command, if there is no impartial tribunal to de-
cide between them the violence of their prejudices,
when provoked, will prompt them to make the ex-
treme appeal.
Sir, is it possible, in the nature of things, that
injustice should result from allowing the judges
of the United States to be independent of the
Legislature ? If they are once appointed to office,
and you have no power to displace them, will not
their regard to reputition influence them to do
what is right ? If they are men of talents, if they
understand their duties, and are perfectly secure
of being in office, so long as they behave well ; if,
when in office, they are rendered completely inde-
pendent of the party by which they were appoint-
ed, there can be but little cause of apprehension
respecting the decisions of the judge, whatever
may have been the particular politics of the man.
Place any gentleman of professional ability in such
a situation, and he will know and feel, that he has
an official reputation to support, and while he is
free from any dependence on party, he must be
weak indeed if he will sacrifice bis character and
rights of office, by submitting to be but the tool
931
HISTORY OF CONGRESS.
952
H. OP R.
Judiciary System.
Mabch. m.
even of the party by whose influence he was ap-
pointed.
Id the course of observations which have been
made by some of the advocates of the present bill,
there has been mention of what could be done in
the case of extreme events. I hope none of the
opposers of the bill has any idea of doing any
thing unbecoming his situation, or injurious to
the country. But it is not the part of wisdom to
be blind to the tendency of measures. It there-
fore cannot be improper to reflect on the proba-
bility, if there is no independent judiciary, of see-
ing the States at length brought into collision.
Unless there is a common tribunal which they
will believe to be impartial, and to which they
may resort for settling the Constitutional distinct-
ions between their respective powers in a satisfac-
tory manner, what must be the event but a re-
turn to the state of things under the Confederation,
or a worse, as my friend from North Carolina (Mr.
Henderson) has depicted? Reflect on the rival
pretensions of different States before the adoption
of the Constitution ! Their rivalries and interfer-
ing claims were producing animosities which men-
aced the country with civil discord. And what
enmity is more direful ? Advert but to the scenes
of the Revolutionary war, especially in those parts
of the country where the inhabitants were mo^t
divided in political views, and were arranged
against each other under the well known names
of the different sides which they espoused ! —
When they were thus divided into hostile parties,
was not their animosity far more violent than is
known in any contest against a foreign Power ?
When the nearest relatives become open enemies,
are they not of all enemies the most bitter? So
when the people of the same country are rent
asunder by the violence of civil dissensions, and
are armed to contend against each other, are they
not then their worst of enemies ? And is there no
danger of a condition of things like this? From
this evil, it is peculiarly the duty of those entrusted
with the Government to endeavor to save the peo-
gle. An impartial tribunal, m which all may con-
de. is a great Constitutional security against
such a calamity. This security, my friend from
North Carolina (Mr. H.) is zealous to preserve.
We have been told of officers of the Revolu-
tionary army who knew how to fi^ht, and could
fight again. When gentlemen (ell us what they
can do, we should not be unwilling to believe
that such is their opinion. But would it not be
better for the country to maintain the judges of
the United States in office, and pay their compen-
sations annually, rather than hazard a decision of
this kind? When gentlemen speak in such a man-
ner, do they expect all who are against them to
be crushed in an instant? Sir! There are also
men who fought in the war of our Revolution,
who think this bill unconstitutional; m^n who
have given as decisive proofs of their military
spirit and talents as any on the other side. Can
it be the wish of gentlemen, that these gallant de-
fenders of the country should be arrayed against
each other? Say, they have their officers! Have
gentlemen also considered, what are their various
means for so serious a trial ? If they would bir
us judge, are they prepared to say what ii Zf.
amount of their strength ? What is (hepopub: *.
of those parts of the country on which thpy rfir!
What is the number of the free men, which ivt
might think expedient to be sent from kiC'-
What is the whole number fit to bear arn/
What their state of equipment and discipii:'!
And what their resources for supporting imy :
the field? Are their armies already prepare.
Since so much has been said about tois rerr.:-
desirable resort, let me observe, that, to ihe o •.
of the Hudson, there is a single division ofDiLti
respecting which perhaps it is not too much tjsi
that if, with a conviction of its being their pui'
duty, and on the call of proper authority. ir
should he assembled complete m arms, fcrihcr
fence of their Constitutional rights against ibiir^-
tion, they would not easily he suMued by i:r
force which could soon be sent against ibem.fr.:
the South, by the present Administratioo. T:fT
are commanded by a gentleman who iscJTi
member of this House. But, sir, let me boj kt
understood to say, there would be any dispc'i--
to rebellion in that section of the country tuTi:3
I allude in general, although they should .•-'fTt?
the present l)ill, if passed, to be an inf radios: >..
Constitution of the United States. To a) '-.;
would not be doing justice to their character. N
sir ! Whatever unconstitutional measure? iMj-
adopted, whatever powers may be assum^i jti
the Constitution, gentlemen may rest assured.^' -
respect to that portion of the country, inanytf?-
of the opinions of the inhabitants, that there*
not be a rebellion.
In making these remarks, I speak of the k-
dency of measures. The principle, sir, of an;:
partial tribunal to decide questions respcciin: •
fundamental rights of the society aiid Go5?f>
ment, is an original principle or this ccwt^
When adopted in the United States,itwasa3'-
elty in the history of nations. The expencK''
thus far has been successful. To have eitath: ■
this principle of Constitutional security, is it*^
culiar glory of the American people, li tut"-
the respective parts of the country to aswrt U''
Constitutional rights, and at the same titnerfcn
internal tranquillity. If you now destroy it »
not the people of particular Stales haveca-?'-
complain that they have been deceived, m i*
event, and that their property and libertic? 2-"*^
not secured according to their just expeciaiK*
When the Constitution was adopted, was k :
right to expect, that the observance of ii tf^^j^
be guarded by the judicial authority, which tt'-'
hold in check the Legislature and the Eiw'-'-*
if ever they should unfortunately be disp^*-^
overleap the established barriers? Wiihoot : j
what is the protection for the feeble States. " ^'
of the large and powerful States should mflu'^
Congress and the President to concur in uoca-^
tutional acts, and to raise armies, and to i-'
forth the treasure of the United States, to cocJ^
their usurpations? The union of the Siaif^';
cording to the true principles of the ConsmcjK-
is highly, very highly to be prized, asiimtf^
933
HISTORY OF CONGRESS.
934
March, 1802.
Judiciary System,
H. opR.
the whole American people. You ml|[ht talk of
this Union as a blei>siDg, after the Constitutional
security, which renders it precious, should be ut-
terly destroyed. But there might then be many
who will feel that the empty sound, although re-
tained, is such a blessing as but afflicts them with
the recollection of their ruined hopes.
Mr. Dana closed his remarks against the bill at
twenty minutes past nine o'clock.
When Mr. Bayard moved the rising of the Com-
mittee. Motion lost — yeas 32, nays 58.
Mr. Plater. — I did hope, sir, from the proceed-
ings of Saturday, that gentlemen who are advo-
cates for this bill would have manifested a simi-
lar spirit of accommodation at this late hour of
the night in granting us further time to express
our sentiments. It is now ten hours since I nave
been in the possession of my seat, and I would
put it to the candor of gentlemen, if the fatigue
of the day does not incapacitate them from fully
discussing a subject of such magnitude. I con-
fess I feel myself unable to do that justice to the
question which an earlier hour would have af-
forded, I shall, therefore, forbear a reference to
the variety of notes I have been at the trouble of
taking, and only state a few of the principles
(without illustration) which will influence my
vote, and then resign myself to the consequences
resulting from the adoption of the bill. I cannot,
however, avoid expressing my surprise that an
honorable member from North Uarolina (Mr. Hol-
land) should say everything which has been de-
livered in favor of striking out the first section of
the bill is declamation, and nothing can shake
his opinion. I very much fear, such is the tem-
per of mind of most gentlemen on his side of the
Committee, if an angel was to descend from
heaven with a view of conviction, the attempt
•would be vain. I believe, if we recur to the Pres-
ident's Message, we shall discover he suggests a
consideration of this subject, grounded on a state-
ment of the number of causes instituted and de-
cided since the establishment of these courts.
Notwithstanding the document showing this state-
ment is admitted by all gentlemen who have
spoken on each side of this question to be inaccu-
rate and fallacious, yet I will myself give it the
iuthority they wish, and it will demonstrate that
^here is a sufficiency of business lo justify the
continuance of these courts in the circuits of Penn-
sylvania and Virginia. Is it then reasonable or
right to deny the inhabitants therein law, justice,
md protection, for the reason the same quantum
of business does not exist in the eastern and south-
ern circuits? This would be measuring justice with
% partial and sparing hand indeed. Sir, the pan-
ic ity of suits in these courts is the strongest evi-
dence to my mind that injuries, wrongs, and op-
pressions have been prevented by the speedy and
faithful manner in which justice has been admin-
istered, or the legal remedy in the old system was
;o great as induced suitors to give the State courts
1 preference to the Federal; consequently, its ab-
olition, for the purpose of a change to the former
establishment, must be productive of great delay
of justice, great inconvenience and hardship to
the judge. I did expect the ability and ingenuity
of gentlemen, particularly some who have the ad-
vantage of being frosted by experience, would
have given stronger reasons for discontinuing a
system which was considered so requisite as to
induce the most intelligent characters who sat on
the floor of the last Congress to organize and ma-
ture, but in this I am disappointed.
Sir, the exclamation of the day is retrench, re-
trench ! In my soul would I unite in this system
of retrenchment did I conceive it for the benefit
of society ; but when I see gentlemen determined
to explode from office a certain set of men who
are personally obnoxious to them, and thereby
pull down and destroy a law before it is tried, it
IS impossible, under these circumstances, I can
concur in this system of retrenchment. Permit
me the hberty of asking if twelve months are suf-
ficient to test the utility of this law? No, sir,
they are not; neither any law whatever — the bu-
siness of a court is not complete in extent in thia
limitation of time; but as commerce flourishes,
population increases, and the transactions of men
become more general and extensive, so are ob*
jects for the jurisdiction of a court promoted and
augmented. How can it be expected we shall
have characters valuable for integrity, legal infor-
mation and respectability, to fill the Judiciarjr,
when we destroy the very inducements to their
acceptance — I mean the tenure of office? Is it to
be presumed that men who are in the habit of ac-
quiring a plentiful support by their profession will
relinquish that for an appointment liable, on ac-*
count of its uncertainty and instability, to termi-
nate at a succeeding session of Congress ? No,
sir, your courts will be filled by needy adventur-
ers seeking a support for the object of peculation,
men of small talents, perfectly inadequate to gather
the fruits produced by superior abilities. When
I look into the Constitution and read, ^Uhe judges
' both of the superior and inferior courts shall hold
^ their offices during good behaviour," these last
words so clearly show the intention of making
the judges independent uf others for continuance
in office, that every construction tending to pervert
this meaning must assail and radically destroy
the fundamental principles of the Constitution.
There is no proposition more generally admitted
and agreed to, and I can say with truth on which
the judgment of the people of this country is
more completely made up than that of the inde-
pendence of the judges ; it is esteemed essential
to the security of life, liberty, property, and repu-
tation, and this the Constitution has wisely guard-
ed by its express provisions. If it is considered
an office held during good behaviour is remova-
ble by the Legislature, you make good behaviour
and legislative will of' the same meaning and sy-
nonymous terms ; this is so contrary to the com-
mon acceptation of these words among us, and
the contradiction apparently so great, that I really
have not heard one gentleman unfold and explain
it; but they tell us we must resort to the jurispru-*
dence of England for the definition of it. Can
it be possible gentlemen are satisfied the men who
compose the Parliament of Great Britain should
935
HISTORY OF CONGRESS.
m
H. opR.
Judiciary System.
Mabch. IS".
be the expounders of a Constitution made hy the
people of America? ' This would, indeed, be a
resifi^nation of all law and language. A case
which arose in Virginia has been frcquenily men-
tioned, whether an office held during good oehav-
iour was subject to Legii'lative interference ? The
greatest law characters of the Stale determined
unanimously it was not ; in which the Legislature
acquiesced. I repeat this in order it may bear on
the mind of an honorable gentleman from Virgin-
ia, (Mr. Randolph,) who is now in his seal.
When a petition not many weeks past was before
this House, the subject matter of which had re-
ceived a previous judicial decision, he rose from
his chair and expressed an anxious wii>h that the
House would not interfere with the decision of a
court. Now, sir, the bill upon your table is well
assimilated, the judges of Virginia have unani-
mously decided on its constitutionality, and it is
known that nine-tenths if not all the judges of
the United States are of the same opinion, and
nothing but the mere form of a record is necessa-
ry to make the case the same. I therefore should
Iiresume, if consistency is to characterize the legis-
ative proceeding? of the honorable gentleman, he
must withdraw his support from the bill upon
your table.
Sir, it is a principle universally acknowledged
that no man shall be a judge in his own cause ;
once you transfer the judicial power to courts un-
der the influence and control of a Legislature you
frustrate the impartial administration of justice.
I consider the Judicial department as the protec-
tor of the Constitution ; it stands between the peo-
ple and the Legislature to check the abuse of a
trust committed to them ; it is a particular province
to determine the constitutionality cf all laws —
the case may arise wherein it will become the
duty of the Judiciary to decide between the Le-
fislature and the President. Should the judges
e dependent on either, great apprehensions might
exist; they would lean to that side on which their
dependency existed. And should the Legislature
and Executive unite to invade this Constitution,
we should be left without a tribunal to give an
impartial and disinterested decision. Thus, sir,
you are dispensing with the only check to the
oppression of an uncontrolled and unlimited power.
And thus this fair and beautiful fabric, so much
admired, by being deprived of its greatest orna-
ment and best support, in consequence of this
night's decision, before to-morrow's sun fulfils his
usual course, will, I fear, vanish from your view.
Mr. Foster moved, that the Committee should
rise. The motion was supported by Mr. Goddaru.
and opposed by Mr. Dawson.
For rising— yeas 33. nays 57.
Mr. Tallmadgb. — Mr. Chairman : Before this
honorable Committee had, by iheir vote, decided
the question a second time that they would not
rise, I had fostered the hope that from compassion
to the Chairman, (who has been confined to the
chair more than ten hours.) they would have con-
sented to postpone the further consideration of the
question under debate, until to-morrow. I was
encouraged in this belief from a consideration of
the great 9ktigue which every member prb :•
must have experienced from the clo^^e aiuci.::
which has been paid to the subject; andespeti:
from a regard to any gentleman who roigtit vm
to offer his sentiments on the occasion. Sio^.
am disappointed in this wish, notwithslaDdiagi^
extreme bad state of the air within these wakikr
very late hour of the night, [ten o'clock.] crq
own lassitude and fatigue from tbeseci^cums'Jr^
combined. I must beg the indulgence of tbisbc^
orable Committee, while I submit a few remirt
for their consideration.
The subject now under examine tioDhariDgb^r.
so ably and so minutely discussed by ^eniles^r
of difierent political sentiments on the fltorofik^
House,I had almost determined to signify my opit
ion by a silent vote, but when I reflect on ibe »
lemnity and importance of the present qorstii
involving in my view, the dearest iniere&isoffr
ciety. I cannot excuse myself to my immtki
constituents, to my country at large,ortoiDfcT£
conscience, without briefly stating the ra<c:<
which will influence my mind in the vote I a:
about to give. In doing this I will not trt^|a»:
long on the patience of the Committee, vhieiin^
the length of the discussion must be neariyQu&
ted; and especially when I reflect thaithejuai
to which the bill on your table immediate!? rcien.
is most probably devoted to destruction.
The first question naturally presented k[t»
sideration is, whether the law now under ^i^s-
sion. can be constitutionally passed by thisHsi^
And secondly, if it be lawful, whether such ma-
sure would be expedient at this time?
Before I proceed to make a single remark en lif
merits of the present question, I take the liberp.
assure this honorable Committee, that lshill:>
follow some gentlemen in their wild excnr^KJ
after objects of extreme irritation and mmwifr
crimination. I fear, sir, they have already bet-
too freely indulged, in the course of this deiaJ*
be useful to this Committee, or beneficial to ••
constituents. It would, however, be improp"'-
pass over the whole unnoticed and onrefuied.
Very early in the debate, an honorable mf®-'^
from Virginia (Mr. Giles) introduced bvvif-
preliminary remarks a prospectus of the loregc~;
Administrations. As if delighted with ibosej^-
jects, which, in their nature are calculated lofJ
cite popular odium, he has with much indusir) ^^
lected those which would be most likely loffij^
a deep and lasting impression on the public iC'^
We have been told, sir, that the crealionofap-
lie debt, which in court language has been «>•
a public blessing, that the origin and establisbn^'
of the funding system, with all its altendent ev
the assumption of the Stale debt, &c., took«f
root and flourished under the fostering banc
the illustrious Washington.
With equal candor and similar good iQiea''-
has the odioui: system of internal taxation an^^
cise been called in to his aid; the formati^B'
banks, moneyed capitals and loans, with exorKi^^
interest, have been also held up to view; andw.*-
is more astonishing than all, the former Am^^
trations have been accused of wantonly prorai-s
937
HISTORY OF CONGRESS.
938
March, 1802.
Judiciary System,
H.opR.
an Algerine war, three thousand miles from our
country, and an Indian war on our frontiers, for
the purpose of extending Executive influence, by
the creation of an army and a navy. Not content-
ed with the imposition of burdens almost too
grievous to be borne, they are held up to public
view as Inviting the barbarians of Algiers and the
savages of the wilderness to indiscriminate pillage,
torture, and death. To finish the picture, we have
been kindly informed that when the authors and
abettors of these national evils were about to be
hurled from their power, the late Judiciary estab-
lishment (now about to be immolated) was form-
ed as a sanctuary, or city of refuge, into which a
few might escape to avoid the impending storm.
These and similar remarks have been offered to
the consideration of the Committee, during the dis-
cussion which has taken place; and to my aston-
ishment and deep regret, the name of the illustri-
ous Washington has been drawn in, if possible
to tarnish his unrivalled glory, and to grace the
triumphs of those who have but recently been ad-
vanced to power. On what other ground is it pos-
sible to account for this wanton mtroduction of
characters and principles into the present debate ?
Without attempting a reply to anv one of those
charges (all of which I think capable of the most
complete refutation, and which have been partic-
ularly noticed by the honorable gentleman from
Delaware) I cannot but express my astonishment
that any such remarks should have been offered to
the consideration of this Committee. For, in the
first place, they could have no possible relation to
the question under debate ; and secondly, the ereat
sensibility which was thereby excited, has Deen
but too apparent to all who have attended to the
subsequent debates. It was impossible to suppose
that such bold and unfounded attacks would not
be repelled with asperity and warmth. I shall,
thereiore dismiss the whole, with a most sincere
desire that no occa:<ion may a^in occur which
shall induce gentlemen to wander so widely from
the path of strict propriety and duty.
It has been well remarked by some who advo-
cate the passage of this law, that if they suppos-
ed the Constitution would thereby be infringed,
DO consideration whatever, either of inconvenience
or expense, which may be supposed to grow out
of the present systeth, would justify so dangerous
an experiment.' To this point, therefore, it be-
comes proper that we particularly, though briefly,
attend.
In the first section under the third article of the
Constitution of the United States, it is thus writ-
ten : "The Judicial power of the United States
' shall be vested in one Supreme Court, and in
' such inferior courts as Congress may from time
^ to time ordain und establish." Here appears to
be a provision, exhibiting a positive injunction on
the Legislature to form, and an assurance to the
people of the United States that they should have
a Judiciary establishment, to consist of one Su-
preme Court and other inferior courts, the num-
ber and titles of which should depend solely on
the discretion of the Legislature.
In the same article it is further ordered ** that
'the judges both of the Supreme and inferior
' courts shall hold their orflice d u ring good behavi-
' our.'' In this clause, the tenure or condition on
which the judges hold their offices is expressly
pointed out.
^^ And shall at slated times receive for their ser-
' vices a compensation which shall not be dimin-
' ished during their continuance in office." By
this clause express provision is made for the sala-
ries of your judges, which cannot be diminished,
but may be increased.
In searching afler truth, it is always deemed
prudent and wise to make use of such terms to
convey ideas as are most familiar and obvious;
and in deciding on the meaning of words, not
above ordinary comprehension, it will never be
deemed unsafe to give them that construction
which they usually convey in the common occur-
rences of life.
As the very essence of the question now under
debate depends materially, if not solely, on the
; true import of the terms made use of in the arti-
I cle recited, ''during good behaviour," it must be
I of primary importance that their meaning be well
I understood.
in forming the three great branches of our Gov-
ernment, the Legislative, the Executive^ and the
Judicial, the Constitution has very wisely pre-
scribed to each the manner of its election or ap-
pointment; the powers they shall severally exer-
cise and enjoy, and the duration of their services,
or their continuance in office. The members
composing the House of Representatives are elect-
ed to serve for two years, the Senate for six years,
and the President and Vice President for four
years, after which they all return to the mass of
citizens from whence they were taken. But when
the courts are ordained, their continuance in of-
fice is expressly declared to depend solely on the
contingency of their good behaviour. By what
construction of language, I beg leave to ask. Mr.
Chairman, is it found that the exercise of their
functions, thus particularly marked out, can be
construed to depend on Legislative will? Surely,
sir, there must be something mysterious and un-
intelligible in these words, "during good behavi-
our," which in common life are vastly easy and
familiar, if they can possibly be construed to mean
during the pleasure of the Legislature. I think I
have endeavored, in the integrity of my heart« to
discover the true intent and meaning of that arti-
cle or clause in the Constitution which ordains
and establishes the Judiciary system, and I am
constrained to acknowledj^e that I can hardly con-
ceive of words more emphatical or more explicit
than those which are made use of.
Let me invite the attention of the honorable
Committee to the following plain proposition,
and, aside from the question now under discus-
sion, let each member decide for himself what
would be the fair and honest construction of the
contrast. A landlord offers to his tenant the oc-
cupancy of a farm, or any other privilege, which,
for the consideration of his service, he conveys
over to him to hold and enjoy during good be-
haviour. In process of time, and confessedly with-
939
HISTORY OF CONGRESS.
941'
H. OF R.
Judiciary System,
March. 1^1
out any complaint of malconduct on the part of
the tenant, the laodlord turns him off. and de>
prives him of his living. What verdict would
this Committee render if such a cause was now
under trial ? Or, in other words, may I not ven-
ture confidently to declare, that every honorable
member on the floor of this House would advo-
cate the cause of the tenant against his landlord,
as the cause of innocence and justice against vio-
lence and oppression? I humbly trusi I may.
The same remarks will hold equally good when
applied to a privilege or benefit granted, or cove-
nanted to be bestowed on an individual, or on per-
sons in their collective capacity. If this infer-
ence is correct, on what principles of justice or
equity can the Legislature of the United States
assume to itself the right of violating a contract,
the outlines and leading features of which are ex-
pressly laid down in the Constitution ?
When a court is constituted by a Legislative
act, the proposition made, or the inducement held
out to the candidate, through the Constitutional
organ, is the honor ojf an appointment as a judge,
and tne salary which by law is attached to the
office. The Constitutional obligation on the Gov-
ernment is, that it shall not deprive you of your
office during good behaviour. When the appoint-
ment is thus constitutionally made, and the jud^e
shall have accepted of the same, the contract is
ratified and becomes complete in all its parts. The
Legislature having thus fulfilled their duty by
obeying the injunctions of the Constitution, has
nothing farther to do in the business. The court
thus constituted becomes a constituent or co-ordi-
Bate, not a subordinate branch of the Grovernment,
subject only to Constitutional control. Thus it
appears demonstrably clear that the Constitution
founds the tenure of office solely on the contin-
gency of good behaviour; the Legislature affixes
the salary to the office, and the judge cannot be
deprived either of office or salary but in the mode
expressly pointed out in the Constitution. Is not
this the plain interpretation of the Constitution '?
Is not this a construction which may very em-
phatically be termed legal, political, and moral,
accommodated to the understandings of all men,
even of the most ordinary capacities?
But, sir, if gentlemen are determined on having
the judges of your courts subject to removal, on
other grounds than by impeachment, why is this
power to be vested in the Legislature ? Those
who advocate the right which the President so
freely exercises, of making removals, and thereby
causinfl; vacancies to happen at pleasure, would
Erobably be more consistent if they would allow
im the power of removing the judges also. If
it should be objected that the Constitution gives
to him no such power, I answer, that the Consti-
tntioD gives no express power to the President to
make any other removals. In the one casa, the
Constitution is silent with respect to removals
from office, while in the other (viz: in the case of
the judges) the tenure of office is expressly men-
tioned, and the negative may be fairly implied.
Our Constitution guaranties us a Uovernment
of checks and balances, so organized that the sev- 1
eral branches of it have a necessary depeo^its^
on each other. No legislative act, however m\
or de.sirable it may appear, can be performci '^
one branch of the Government witboat tbc«&
sent and accordance of the others. cofistiiDtt<i iV
this purpose. Hence is derived to our con^tiiot:^
a degree of safety and prudence of immense vu>
and every day's experience demonstrates to os'i
benefits and blessings of these mutual cbeft:
There is a responsibility attached to the Exeti^
tive, very different from that which beloDgstot:^
Legislative branches of your GoverDmeou 'm
while the latter are responsible oolytothep^
pie, by whom they are appointed to office, lit
former is amenable for all his official ccok;
immediately to the two branches of yourLe^s)-
ture. by one of whom he may be impeached ak
by the other removed, if found guiltjr, and lb^*
lutely disqualified from holding any office Qsier
the Government. If therefore the power airr
moval, now contended for, is about to be timA.
I ask gentlemen, whether, on the principles if cc
Government, the power would not be more^tfiT
lodged in the hands of the President tbu fiii
the Legislature ? Not that I would foramsr^
consent that this power can be constiiou-iui
exercised by either; but if the indepeodfr^ >i
the Judiciary must be prostrated, I $ubmiito;5!
consideration of those who advocate the pasi?
of the law which annihilates the late Jad.u'y
system, whether the exercise of a power. wkrL
I conceive to be fraught with so much dufr.
would not be more safely lodged in the hafidi <.t
the Executive.
If the doctrine of independency is taken aci[
from the Judiciary, is there no danger that m
Legislative power may be degraded to fratifv i^
most vile and malignant passions? Surely. M:
Chairman, there must be some radical eriLscst
very powerful difficulty, which needs the 5Ut:i
arm of the Legislature to correct and reEnoTt
This physical strength, I know, may accocn]ku>.:
the end, but in my view of the ConstiiuiioL:
cannot sanction the wrong; it may iodeed x^'-''
the wound, of which I very much fear ihispwr
na charta of our independence will lingeraod >
The very circumstance of strength, or po'c
which the Legislature possesses, affords cau>e -^^
apprehension, that when the barriers of your Ja^
ciary are thus thrown down, it may at any ^^^
be wantonly assailed by superior force.
The Judiciary being a co-ordinate branch of t:*
Government, with the Legislative andExecati'r
is a wholesome check upon their proceediogvaci
in this way may very justly be considered i-^
guardian of the people's liberties. These lll^^
legitimate branches of the Government when at;*
ted, may defy any attack; but the Judiciary t^^^
its very nature, being the most feeble, if iipP
tected by the others cannot long endure. Wbes*
ever a predominant faction shall exist (aod ii^
tions may always be looked for under free >^^
popular Governments) and your Judiciary ^li^
interpose to arrest its progress towards any uncoi'
stitutional end, how unsafe and precarious QC^'
be our situation ! It is therefore not only ftirbii-
941
HISTORY OF CONGRESS.
942
March, 1802.
Judiciary Sijatem,
H. OF R.
den to assail her walls by any form of attack, but
the contrary duty is forcibly impressed, to nourish
and cherish this helpmate of the Constitution, as
every noble and honest heart would the fair part-
ner of his domestic bliss. In executing this duty,
the Legislature perform one of the implied func-
tions of their appointment, and a very important
duty attached to their office. If this doctrine is
correct, then it will undeniably follow, that every
attempt to prostrate the dignity and independence
of the Judiciary system, is an attack upon an im-
portant constituent branch of your Government,
and ought to be resisted. Encroachments by the
Legislature are perhaps the most dangerous, be-
cause the least suspected and accompanied by the
most power.
Having thus briefly explained the unsophistica-
ted meaning of the words in the Constitution, by
which the Judiciary system is established, I snail
forbear to make any remarks on the construction
which some of the Stales may have given to the
same expre^isions in their State Constitutions. Nor
will I detain th^ Committee at this late hour of
the night, to draw the parallel between the Judi-
ciary establishment of Great Britain and that of
the United Slates, in point of independency and
inviolability. Had I time, I might quote copious
extracts, frcm high authority, in point; I mean
from the writings of the President of the United
Slates. In his Notes on Virginia, he appears to
have handled this subject witn great perspicuity
and precision, placing the independence of the
judges on higli ground. For the present I must
content myself by referring gentlemen to that
treatise, and particularly to that part of it which
proposes a constitution tor the State of Virginia.
Indeed these points, with others which might be
noticed, have been accurately explained and en-
forced by gentlemen who have preceded me in
their remarks.
In determining the true meaning of the Consti-
tution of the United States, it must be vastly im-
portant to know what were the arguments of the
leading members of the Convention, when that
memorable instrument was framed. Had I time,
and was not the patience of the Committee nearly
exhausted by the very lengthy discussion whicn
has taken place, I would read many extracts from
the debates of some of the most prominent speak-
ers on that occasion. By these, we might with
great accuracy test the opinion of the General Con-
vention on almost every article of the Constitution.
My honorable friend from South Carolina TMr.
Rutleoqe) has favored us with some of tnose
sketches, with great correctness, which must be in
the recollection of this honorable Committee. One
very important fact I shall not feel justified to
omit. A motion was made in the General Con-
vention, when the article respecting the Judiciary
establisnraent was under consideration, to author-
ize the President of the United States to remove
a judse from office, on the joint application of
both Houses of Congress. This motion, after be-
ing thoroughly debated and maturely considered,
was negatived. Sir, I am happy in being able to
lay before this Committee such high authority |
and in remarking that the enlightened framers of
our Constitution, viewing the independence of the
Judiciary of such vast importance, rejected the
propositions as dangerous to the liberties of a free
and independent people. What strong and irre-
fragable evidence does this, afford, Mr. Chairman,
that the principle which I contend for is correct,
and that the ground on which we wish to place
this important branch of our Government is the
same which it occupied when the Constitution
was framed ? Should any gentleman wish further
information on this head, give me leave to refer
him to the original documents in the office of the
Department of State.
A further proof in favor of our position is de-
rived from the reception which it met with in the
State conventions. When the Constitution was
sent to the several States for adoption, every arti-
cle and clause of it underwent a severe scrutiny
and a most critical examination. Perhaps no ar-
ticle was more minutely examined than that which
respects the Judiciary establishment, and from
what I then heard and have since been informed,
I am induced to believe that the Constitution
would not have been adopted, if the independence
of your judges had not been deemed to be secured
by that instrument. In most of the States, where
the debates were preserved, it appears that this
particular clause was discussed in direct reference
to the independence of the judges, or the tenure
by which they hold their offices. In Virginia, the
doctrine which we contend for, has always been
strenuously and honorably maintained.
It is objected to the doctrine that I contend for,
that if the Legislature cannot annul the courts
when once organized agreeably to the Constita^*
tion, they are paramount to the Legislature them-
selves. A verv slieht attention to this subject|
I am persuadea, wiU prove this reasoning very in-
correct. Legislative provision is necessary to bring
into office the President of the United Slates. Yet
the Legislature, as such, cannot remove him.
Does it hence follow that he is paramount to the
Legislature?
It is also remarked by those who advocate the
passage of the law on your table, that the power
which creates of necessity possesses the right and
ability to destroy. The same Legislative power
necessary to call a court into being, is also neces-
sary to lay a tax, or pass any other law. I beg
leave here, also, to take a difference in the two
cases. The Judiciary is a constituent part or
branch of the Government, by an express provis-
ion in the Constitution, and the Legislature only
pursues the Constitutional will, as its organ, by
giving to it existence and form ; but its inherent
powers are all expressly derived from the Consti-
tution, whieh, I trust, will not be claimed to be-
long to any other law. The ab>urdity of this
objection will further appear if the Constitutional
mode of organizing the Government is but slight-
ly examined. When the census of the United
States is laid before Congress, a law must be pass-
ed apportioning to each State its number of Rep-
resentatives. This law is again brought under
the Legislative direction of the several States be-
943
HISTORY OF CONGRESS.
9^i
H. OP R.
Judidai'y System,
March.
M i.
fore the House of Representatives can be formed.
Will this give to the Legislature a power to ex-
tend or limit the periods of their service, or in
any shape to vary or alter their duties, different
from the Constitutional provisions? I presume
it will not. The same remarks will, in a certain
degree, apply to your President, Vice President,
and Senate.
It may he further remarked, that the salary of
the President of the United States is fixed by law,
even by an act of this omnipotent Leirislature ;
and, by the Constitution, ^* it may not be increased
or diminished during the period for which he
shall have been elected." Wi!l any gentleman of
this Committee contend that the Supreme Legis-
lature have a right to vary that compensation,
even by the wholesome corrective, a refusal to ap-
propriate ? I trust not.
Of equal avail do I consider another argument,
which is much relied on by our opponents, viz:
that if you cannot constitutionally remove the
ludge, you may, nevertheless, takeaway or destroy
nis office. Really,* Mr. Chairman, there appears
to be a decree of chicanery and cunning in such
a proposition, highly unbecoming the Legislature
of any country whatever.
All laws, human and divine, require that the
parent and the master should both feed and clothe
the child or the servant. Yet if the master should
neglect to furnish necessary clothing, and the ser-
vant should die in consequence of such neglect, the
master, by this novel construction, would be clear.
The judge, in this case, is not removed from his
office, but the office from the judg^e.
It is further urged, that the national sentiment
is expressly in favor of the repeal. But, now, sir,
does this appear? Because a majority of the
members, returned to serve in the present Con-
gress, are in favor of this measure, does it conclu-
sively follow that the great body of our constitu-
ents wish such an event? Is it not true, beyond
contradiction, that many of the most prominent
features of the late Administrations have been
represented as involving our country in the most
disastrous evils, and even tending to establish a
monarchy over the people? Need I call to the
recollection of this honorable Committee, the base
attempts which have been made use of, to calum-
niate and traduce some of the fairest characters
that have appeared during our glorious struggle
for liberty and independence ? For the honor of
my countrv. and the dignity of human nature, I
wish a veil could be drawn over the conduct of
some who were so base as to assert, and others
who were so scrupulous as to believe that the
great founder of our independence had become an
apostate. Well may America blush, when she is
told that the illustrious Washington, whose
bravery and wisdom so eminently contributed to
establish our independence, has been libelled as a
monarchist, and accused of renouncing thosj prin-
ciples of rational freedom in which he em arked.
If the virtues of his private life, and tie more
glorious and resplendent actions which adorn his
public character, could not secure him from the
envenomed shaits of envy and malice while he
lived, it could not be expected that his pok .
administration would pass unnoticed and orr:
sured when he should sleep in the tomb, H..
the honorable gentleman from Virginia (il-
Giles) respected the feelings of those who Tr>
erate the memory, as they value theserrit»>
the unparalleled man, the ashes of the hero r:
the patriot would not have been disturbed os in^
occasion. Attempts like these have been but r
successfully employed to excite the popular cbr.'
against measures which have proved vastly sr-
eScial to our country, against men whose serti;?
and sacrifices merit the gratitude of all At:
permit me, Mr. Chairman, m this place, tcdep.
the prevalence of that party spirit whicb oorgrti:
political lather and friend*, as in prophetic y'luA
foresaw would, if indulged, commit the peaces::
destroy the happiness of our rising Republie. i
have indulged these few desultory remarb.foo!i-
ed, I trust, on solid fact, that I might beDCPif?
the true ground of popular clamor, and tba: \y.
repeal of the late Judiciary system hasberac;!^
ed in to aid the design. How is it possible Mr
Chairman, that the great body of the people 4 ck
he su unfriendly to the late establishmeoiasi^i
advocates for the repeal assert, when neiibert-*
nor opportunity has been afforded them loju?
of its merits or defects ! Surely, sir, there cr'^
no solid weight in this objection, and I irt'-
will be abandoned.
I am not, sir, a professional man myself':'
have I any kinsman, however remote. who^K
be benefitted in the smallest degree by the li'i
Judiciary establishment; of course I cao hare^:
motive in defeating the passage of tbis lav. -^
what is connected with the general interest oi si
fellow-citizens. So far as my knowledge am! 12;
formation have extended. I should have pronoaacs
very favorably of the late system, as promote:
dispatch in the administration of justice, aodrts-
edying many defects which were apparent inf-
old law.
Many other objections have been made to |»
independence of the judges, on the principles t:''
we contended for, of which I will briefly siisi
few as they have occurred.
Say our opponents, if putting down oranr-
ling a court violates the Constitution, this ^-j
effectually done by enacting the law now propG?«
to be repealed. If the fact should be admits
what argument can possibly be drawn from d^
to favor the proposed repeal ? If a former Lf?**
lature has done wrong, is the evil remcdiec^?
continuing the practice? But I trust, sir, ih^P;;
ciples and provisions of that law are capaMe ^
the most complete and perfect defence; nor w-ji-s
I now omit the reply, had I not a full belirt v^
this honorable Committee must be impressed wi';
what has been urged on that subject, especia-f
by my colleague, (Mr. Griswold.) viz: ^^
The expense and dangerous tendency resn"":
from such a number of judges.
The small number of causes which have ws
brought into those courts.
The peculiar benefits to be derived from ^jM'-
tribunals.
945
HISTORY OF CONGRESS.
946
March, 1802.
Judiciary System,
H. opR.
The omnipotence of Federal courts, and the as-
piring ambitious views of the judges, manifested
in their calling States to how to their sovereign
mandates, and using the late Sedition law as a
political engine for persecution.
Judges Incoming Federal apostles, preaching
up federalism when on the duties of their circuits,
and looking for objects on which to satiate their
ven?eauce.
The peculiar state of the Legislature when the
law now under consideration was passed.
These and a variety of similar objections have
been stated, and the same have been so fully and
repeatedly refuted, that any further attempt on
my part to obviate their force, or expose their ab-
surdities, I am aware, might be deemed by many,
but useless repetitions. I cannot but consider
them as calculated for no better purpose than to
inflame and mislead the public mind, and to di-
vert its attention from a consideration of the true
merits of the questioQ now before the Committee.
The honorable gentleman from Virginia, (Mr.
Giles,) has thought proper to introduce the teach-
ers of religion into his argument for abolishing
the Judiciary. They have been represented as
converting their pulpits into political forums, and
stirring up all the angry passions of the human
miitd. If these assertions were literally true, it
is not perceived that they could have any possible
bearing upon the present question. But in jus-
tice to that venerable class of our fellow-citizens
I feel constrained to declare that I think them
undeserving so general and so illiberal an attack.
Throughout New England, they have long and
deservedly been considered as a learned, pious,
unaspiring, and very useful class of men. De-
voted to study and instruction, and relieved from
the cares and the burdens of State, their time and
talents are devoted to moral pursuits. To this, as
one of the most prominent features in the estab-
lishment of the Northern and Eastern States, may
it safely be asserted, that we owe much of that so-
briety and regularity which has heretofore so emi-
nently contributed to our prosperity and glory.
When suitable occasions present, wherein consists
the political sin, or even the impropriety, that the
teacners of morality should also be instructers in
the science of gooa government? Through the
late Revolutionary war, no class of men were
more eminent for their exertions in the cause of
oar country, and at no period have they been
found opposing the general good, manifested in
the Constitution and laws of our countrv. Among
this class of men, so far as my knowledge hsA ex-
tended, anarchy and disorganization have found
feWj very few, abettors. However irrelevant these
remarks may appear to the subject now under dis-
cussion, I deem no apology on my part necessary,
^vvhen it is known that a meritorious class of our
citizens have been wantonly attacked, without the
power of vindication or reply.
3ut, Mr. Chairman, I beg leave further to re-
niark, that if the constitutionality of the law in
question admitted of no doubt, still the expediency
of the measure, at this juncture, is very question-
able indeed.
The importance of having Federal tribunals
open to all who may prefer them to the State
courts.
The prospect of obtaining speedy and prompt
decisions with the least possible expense.
The favorable reception on which the new es-
tablishment has met with, evidenced by declara-
tions and memorials from those the most compe-
tent to estimate its utility and worth.
The special and peculiar benefits hence result-
ing to the commercial interest, from which your
revenue is almost exclusively drawn. And the
manifest inconveniences and defects of the old
system, which are in a great measure remedied
by the new, are reasons of no small or trifling
consideration, to induce the continuance of the
new establishment. On each of these I might di-
late, but presume that every member of this Com-
mittee must feel impressed with their importance.
Innovations on established principles and forms
have ever been deemed dangerous; at any rate it
is a mark of prudence not to run hastily into them.
In the case before us, time has hardly been given
for a fair experiment ; and if the institution is to
be tested by its usefulness, no prudent and unpre-
judiced man can say that we are ripe for such a
decision. If it should, therefore, only be doubt-
ful as to its utility and expediency, may it not be
hoped that a majority of this Committee will de-
clare, by their vote, that they will at least give
it a further trial. If, on furiner experiment, the
system should be found defective, or inexpedient,
will it not then be as fully within the power or
the Legislature to repeal the law in question as at
the present time? If gentlemen who advocate a
repeal of the late Judiciary establishment are cor-
rect in their ideas, thata majori ty of our constituents
prefer such a measure, surely there can be no
danger of their losinff either the power or the in-
clination to accomplish so desirable an end. I
would further remark, that if the accession of
moneyed men to the community, may be con-
sidered of any avail, no circumstance of govern-
mental interference will contribute so effectually
to this end, as the establishment and maintenance
of an independent Federal Judiciary. To this
branch of your Government, men of property al-
ways look with confidence for support. Without
stability in this important branch, your moneyed
capitals will be drawn off, and those which were
designed for this country will be turned into some
other course. The same remarks will apply with
equal force to the sale of your wild lands. Need
I turn the attention of this Committee to those
States which have been recently formed for ex-
amples. The iniquities and evils which have been
'practised on non-resident proprietors, under State
Legislatures and State Judiciaries, have been in-
calculably great; and if your Federal tribunals
should be prostrated, or the confidence of the com-
munity in them weakened, these evils would un-
doubtedly increase, and the value of your new
land would greatly diminish. Let it not be re-
marked that the Slate courts are sufficient for all
these salutary purposes, as well to excite confi-
dence as to protect property. These institutions
947
HISTORY OF CONGRESS.
948
H. OP R.
Judiciary System,
March, 1802.
of our State governments, I venerate as much as
any man, but where strangers and foreigners are
concerned^ or even citizens of different States, the
objection is of no avail.
Mr. Chairman, we have now progressed thirteen
years, under the auspices of a constitution, ordain-
ed for the express purpose to form a more perfect
union, establish justice, insure domestic tranquil-
lity, provide for the common defence, promote the
general welfare, and secure the blessings of liberty
to ourselves and our posterity, and until very
lately I have never heard the independence of your
Judiciary called in question. Give me leave, sir,
to call on gentlemen, from whom I differ m sen-
timent on this subject, to inquire coolly and dis-
Eassionately of each other, whether they would
ave contested this principle if the late appoint-
ments in the Judiciary had not taken place. Sir,
if this barrier should be broken down, I see nothing
to prevent a future Legislature, if it should be so
disposed, from prostrating your Supreme Court at
their feet. In fact the principle now contended
for by the advocates of the present bill, goes all
lengtns towards prostrating the independence of
your Judiciary in all its branches. Are srentlemen
prepared to aaopt such a system as this? Are the
advocates for this novel doctrine willing to de-
clare that the temple of justice shall he broken
up, her purity violated, and her glory, honor and
independence buried in ruins? Surely, sir, these
are not visionary ideas; but they appear to me to
result naturally, if not necessarily, from the success
of the present measure. I am by no means dis-
posed to excite needless alarm ; far less do I wish to
portray the evils attendant on civil war. Too
much, it appears to me, has been said on that sub-
ject already. Some gentlemen talk of a civil war,
of a revolution in our country, of swords and bay-
onets, and of friends and relatives set in hostile ar-
ray against each other, as of the most trifling, and
common occurrences in life. Indeed one gentle-
man (Mr. Nicholson) has borrowed an unusually
bold metaphor and has told us of a cloud of bayo-
nets: and. as if not contented with calling in (lo-
mestic force to his aid, it would seem as if celestial
interference was expected. Sir, I have passed
through one revolution, and shared in its toils from
its commencement to iis issue, and most devoutly
do I pray never to behold another. The lan-
guage sometimes held upon the floor of this House,
looks more like preparation for battle, than for
cool and deliberate discussion. Although I ac-
cord with the honorable Speaker in his remarks
on this particular point of the subject, yet I cannot
believe him correct in the full extent of his doc-
trine. He supposes it would be hardly possible to
bring our country to such a state of irritation af
to take up arms against each other. Sir, the seeds
of every evil passion are the native production of
every heart, and suitable excitement will bring
them into exercise. Let this Government and
Constitution be prostrated, and I have no hesitation
in declaring that a civil war must be our portion.
For heaveo^s sake, for our country's sake, let every
thing tending to such an issue, be -most carefully
avoided 1
Although I am not about to say, t^at if you jnss
the bill on your table, a revolution will ensue, yet
I do say that such terrific declarations as are held
up to our consideration, have a tendency to pre-
pare the public mind for such a deplorable issu&
The National Legislature not only gives law but
also a kind of political tone to our country. It
ought therefore to be a school not only of sound
policy and good Government but also of urbaoity
and politeness. When our constituents are per-
suaded that our conduct is influenced by a regard
to their interests and the public good, it may be
hoped that they will imitate our example.
The blessings of peace and independence were
but half secured, before the Constitution of the
United States was formed and adopted ; and give
me leave to add that the brightest star in tbis
new political constellation is yonr independent
Judiciary.
In the present constitution of human naure,
Government and efficient laws are absolutely ne-
cessary ; in the structure of which passion and
party views too freqently mislead the judgment
and obscure the understanding. A sober and dis-
passionate corrective becomes, there fore, absolutely
necessary. Your tribunals of justice afford the
necessary relief. Here the rich and the poor, the
strong and the weak, meet on equal ground ; and
what I claim to be a principal excellence, inherent
in their very nature, may here be found, viz. a right
to decide between the Constitution and the law.
However terrific this may appear to some gentle-
men, who advocate the omnipotence of the Legis-
lature, I consider the power which the Judges from
the very nature of their office possess, of declaring
a law null and void which contravenes the Con-
stitution, to be of the highest importance, and at-
tended with the happiest effects. What safety is
there to any individual, or even to the commuaity
at large, if this Constitutional check should be re-
moved ! If the Legislature are to judge in the
last resort on the constitutionality of their laws,
wharkppecan there be entertained of redress, even
should tlWy violate the principles of the Constitu-
tion in the most flagrant manner ? A consolidated
Government is the direct result of Legislative and
Judicial powers being vested in the same body.
No people can long remain free, whose Legislature
assumes the right first to enact and then to ex-
pound her laws. The late revolutionary tribu-
nals in France advanced but one grade further,
and executed their laws themselves, and surely no
people were more wretched, and no tyranny niore
con«f>lete. Every encroachment on Constitution-
al prerogatives, tends to absolute and complete
despotism. If a law should be declared unconsti-
tutional by a court, it would by no naeans follow
from thence, that they claimed superiority ovei
the Legislature ; but that in the exercise of ih^^
functions, they pronounce the sovereign will of
the people, expressed or implied in the Cosstitu-
tion, which is superior to both. Indeed, if this
part of their duty should be omitted their oaths
would be ineffectual, and perjury would be jusdy
imputed to them. I am happy that on that point
of the argument, one of our opponents (Mr. Ba*
949
HISTORY OF CONGRESS.
950
March, 1802.
Judiciary System.
H. opR.
con) fully accords with us in sentiment and al-
lows to all courts the discretion of pronouncing
between the Constitution and the law.
Between a government of laws and a govern-
ment of force there is no medium. If your foun-
tains of justice are pure, independent, and free from
restraint, your land will enjoy prosperity, and your
people will be tranquil and happy ; but if the law
on your table should have a tendency (as I very
much fear is the case) to make the Judiciary the
subservient panders and tools of the Legislature,
too late will posterity bewail the decision of this
inauspicious day.
Mr. T. concluded his remarks against the bill a
quarter before eleven, after which; Mr. Lowndes
spoke for a few minutes against the passage of the
bill. .
When the main question was taken, on striking
out the first section of the bill, and lost — yeas 31,
nays 60.
Mr. Batard rose and stated his desire to offer
certain amendments, the objects of which he spe-
cified; and his preponderating wish that they
should be discussed in the Ciiramitteeof the Whole.
But he added, that be should not object to the
Committee rising and reporting the bill, provided
an opportunity were allowed in the House to offer
tbem.
Mr. Griswold was of opinion that it was most
proper that the amendments should be made in
the Committee ; he therefore moved that the Com-
mittee rise and ask leave to sit a^ain.in order that
the amendments might be submitted to-morrow.
The question on rising was taken and lost — yeas
37, nay^i 54.
The remaining sections of thebill were then read,
without any amendments being offered. When
the Committee rose, and reported the bill without
amendments ; and then the House adjourned, at
a quarter past eleven o'clock.
ToESOAT, March 2.
A Message was received from the President of
the United States, transmitting letters recently
received from our Consuls at Gibraltar and Algiers,
presenting the latest view of the state of our affairs
with the Barbary Powers.
The Message and letters were read, and ordered
to be referred to the committee appointed, on the
fifteenth of December last, to prepare and bring
in a bill or bills further and more effectually to
protect the commerce of the United States against
the Barbary Powers.
A petition of sundry inhabitants of the county
of Wayne, in the Territory of the United States
Northwest of the river Ohio, was presented to the
House and read, stating certain inconveniences to
which they have been, and are now, subjected, in
consequence of the Indian claims to lands in the
said Territory not having been yet extinguished,
and the right of the same vested in fee simple to
the petitioners; also, of the waat of post roads
extended to their settlement, and praying relief in
the premises; also, that one or more townships
of land may be granted for the purpose of erecting
and endowing an academy or college in the said
county of Wayne, for the instruction of youth in
that Territory.
Ordered^ That so much thereof as relates to
an establishment of a seminary of learning in the
said county of Wayne, be referred to the com-
mittee appointed on the twelfth ultimo, to whom
was referred a petition of the Trustees of" Jeffer-
son Academy," at Vincennes, in the Indiana Terri-
tory ; that they do examine the matter thereof
and report the same, with their opinion thereupon
to the House.
Ordered, That the residue of the said petition
do lie on the table.
Memorials of sundry merchants of the city of
Hartford, in the Slate of Connecticut, and of sun-
dry inhaoitants of the town of Washington, in the
State of North Carolina, were presented to the
House and read, respectively praying relief in the
case of. the capture and condemnation of their pro-
pert jr by the cruisers and courts of the French He-
public, during the late European war. — Referred.
The Speaker laid before the House a letter
from the Secretary of Treasury, accompanying
annual statements of the district tonnage ot the
United States on the thirty-first of December, one
thousand eight hundred, formed from the quarter-
yearly abstracts rendered by the several collectors,
together with certain observations expl«natory ot
the said statements ; which was read, and ordered
to lie on the table.
The Speaker laid before the House a letter from
the Secretary of the Treasury, accompanying his
reports on the petitions of James Bell, by Peter
Mills, his attorney, and of Isaac Sawyer and
others, referred to him by order of the House, on
the twelfth and seventeenth ultimo ; which were
read, and ordered to be committed to a Committee
of the whole House on Monday next.
A message from the Senate informed the House
that the Senate ha ve passed a bill, entitled '* An act to
authorize the President of the United States to
convey certain parcels of land therein mentioned ;"
to which they desire the concurrence of this House.
The said bill was twice read and committed to
a Committee of the whole House on Monday next.
The Speaker laid before the House a letter from
the Secretary of the Treasury, accompanying a
statement of the emoluments of the officers em-
ployed in the collection of the customs for the
year 1801, and a letter, to him, thereon, from the
Comptroller of the Treasury ; alsa a statement
of the sums paid into the Treasury of the United
States, by the Collectors of each port, during the
same year ; which were read, and ordered to he
referred to the Committee of Commerce and
Manufactures.
JUDICIARY SYSTEM.
The House then nroceeded to consider, at the
Clerk's table, the bill sent from the Senate, en-
titled ^'An act to repeal certain acts respecting the
organization of the Courts of the United States,
and for other purposes,'' to which the Committee
of the whole House, on the fiirst instant, reported
no amendment: Whereu|K>n,
951
HISTORY OF CONGRESS.
v
H. opR.
Judiciary System.
March. li»*5
Mr. Bayard moved to strike out the first section
of the said bill, in the words following, lo wit :
" Be it enacted by the Senate and House of Repre-
sentatives of the United States oj America in Congress
assembledt That the act of Congress, passed on the
thirteenth day of February, one thousand eight hundred
and one, entitled 'An act to provide for the more con-
venient organization of the Courts of the United States/
from and after the first day of July next, shall be and
is hereby repealed :"
And, on the question thereupon, it passed in the
negative — yeas 30, nays 55, as follows:
Ybas — James A. Bayard, Thomas Boude, John
Campbell, Manasseh Cutler, Samuel W. Dana, John
Davenport, Abiel Foster, Calvin Goddard, Roger Gria-
wold, Seth Hastings, Joseph Hemphill, Archibald Hen-
derson, William H. Hill Benjamin Huger, Thomas
Lowndes, Lewis R Morris, Joseph Pierce, Thomas Pla-
ter, Nathan Read, John Rutledge, William Shepard,
John Stanley, Benjamin Tallmadge, Samuel Tenney,
Thomas Tillinghast, George B. Upham, Killian K. Van
Rensselaer, Peleg Wadsworth, Lemuel Williams, and
Henry Woods.
Nats— Willis Alston, John Archer, John Bacon,
Theodorus Bailey, Phanuel Bishop, Robert Brown, Wil-
Jiam Butler, Samuel J. Cabell, Thomas Claiborne^ Mat-
thew Clay, John Clopton, John Condit, Richard Cutrs,
Thomas T. Davis, John Dawson, William Dickson,
Lucas Elmendorf, Ebenezer Elmer, John Fowler, Wil-
liam B. Giles Edwin Gray, Andrew Gregg, Joseph
Heister, William Helms, William Hoge, James Hol-
land, David Holmes, George Jackson, Charles Johnson,
William Jones, Michael Leib, John Milledge, Thomas
Moore, James Mott, Anthony New, Thomas Newton, jr.,
John Smilie, John Smith, of New York, John Smith of
Virginia, Josiah Smith, Samuel Smith, Henry South-
ard, Richard Stanford, Joseph Stanton, jr., John Stew-
art, John Taliaferro, jr., David Thomas, Philip R.
Thompson, Abram Trigg, John Trigg, Philip Van
Cortlandt, John P. Van Ness, Joseph B. Varnum, Isaac
Van Horne, and Robert Williams.
Mr. Bayard then moved to amend the bill, by
adding to the first section thereof, the following
words: " except so much of the forty-first section
of the said act as provides for the augmentation
of the salaries of the District Judges of Kentucky
and Tennessee:"
And, on the question thereupon, it passed in the
negative — yeas 40, nays 53, as follows:
Yeas — James A. Bayard, Thomas Boude, John
Campbell, Manasseh Cutler, Samuel W. Dana, John
Davenport, Thomas T. Davis, John Dennis, William
Dickson, Ebenezer Elmer, William Eustis, Abiel Fos-
ter, Calvin Goddard, Roger Griswold, William Barry
Grove, Seth Hastings, Joseph Hemphill, Archibald
Henderson, William H. Hill, Benjamin Huger, Thom-
as Lowndes, Ebenezer Mattoon, Lewis R. Morris, Jo-
seph Pierce, Thomas Plater, Nathan Read, John Rut-
ledge, William Shepard, John Cotton Smith, John
Smith, of New York, John Stanley, John Stewart, Ben-
jamin Tallmadge, Samuel Tenney, Thomas Tillinghast,
George B. Upham, Killian K. Van Rensselaer, Peleg
Wadsworth, Lemuel Williams, and Henry Woods.
Nats — Willis Alston, John Archer, John Bacon,
Theodorus Bailey, Phanuel Bishop, Richard Brent,
Robert Brown, William Butler, Samuel J. Cabell,
Thomas Claiborne, Matthew Clay, John Clopton, John
Condit, Richard Cutts, John Dawson, Locts E' i-
dorf, John Fowler, WiUiam B. GUcs, Edwin Gt
Andrew Gregg, Joseph Heister, William Heinn h
Ham Hoge, James Holland, David Tlwmti, {jkz
Jackson, Charles Johnson, WUiiam Jones, Mkis
Leib, John Milledge, S. L. MitchiU, Thomu Mai
James Mott, Anthony New, Thomas Newton, jr.. 1^
Randolph, jr., John Smilie, John Smith, of Vboi
Josiah Smith, Samuel Smith, Henry Southard, Rir-s
Stanford, Joseph Stanton, jr., John Taliafern^'c:
David Thomas, Philip R. Thompson, Abnm Irz
John Trigg, Philip Van Cortlandt, John P. Via Srs
Joseph B. Varnum, Isaac Van Home, tod ?jr.
Williams.
Mr. Bayard then moved to amend the bill i:
inserting after the words '' one thoasand rc
hundredand one," in the fifth section theret::^
words following, to wit : " if the same be retci
able after the said first day of July next:"
And, on the question thereupon, it passed .s.:r
negative — yeas 37, nays 51, as follows;
Yeas — James A. Bayard, Thomis Boode. 1:
Campbell, Manasseh Cutler, Samuel W. dm-Jj^
Davenport, Thomas T. Davis, John Denoii. ^'i^c
Eustis, Abiel Foster, Calvin Goddard, Roger Gri>i«>:
William Barry Grove, Seth Hastings, JoiefA&ii>
hill, Archibald Henderson, WUliam H. Hi ^?-
min Huger, Thomas Lowndes, Ebenewr Sr^
Lewis R. Morris, Joseph Pierce, Thomas PUe. >>
than Read, John Rutledge, William Shepcrd'Ctn
Smith, John Smith, of New York, Jolin Sunle^'i
Stewart, B. Tallmadge, S. Tenney, Thomas Tu*
hast, George B. Upham, Joseph 6. Vamua KJ.<*
K. Van Rensselaer, Peleg Wadsworth, LcmK.^-
Hams, and Henry Woods.
Nats— Willis Alston, John Archer, John Bsrs
Theodorus Bailey, Phanuel Bishop, Robert h^^
William Butler, Samuel J. Cabell, Thomu Oiirs
Matthew Clay, John Clopton, John Condit. I^^'f'
Cutts, Thomas T. Davis, John Dawson, Willitf^^
son, Lucas Elmendorf, John Fowler, Willitm 6 ^
Edwin Gray, Andrew Gregg, Joseph Heister, ^-^
Helms, William Hoge, James Holland, DandB:^
George Jackson, Charles Johnson, Willism J^^
Michael Leib, John Milledge, Thomas MooreJ«5"
Mott, Anthony New, Thomas Newton, jr^ Ja^^
dolph, jr., John Smilie, John Smith, of Viifini*.^;^
Smith, Samuel Smith, Henry Southard, Ridtfy* "^
ford, Joseph Stanton, jr., John Taliaferro, j:- ^ .'•
Thomas, Philip R. Thompson, Abram Trigf. • -
Trigg, Philip Van CorUandt, John P. Van N«* '
seph B. Varnum, Isaac Van Home, aod i-^
Williams.
Mr. Bayard moved to amend the
ing, to the end thereof, a new section, ^
words following, to wit :
" And be it further enacted. That all procwJ-'^'
a criminal, penal, or a civil nature, which hi^» '''
commenced in the circuit court created and e^ '
by the act first herein mentioned, and whereof t* -
cuit courts existing prior to the passing of ihco-''-*
had not cognizance, shall be cognizable in ib^<^'
courts revived by this act, and may be proceeds -'^
the same manner, and with the same *^^ f!X
could have been in the circuit courts estabhshecJ?-
aforesaid act :"
And, on the question thereupon, itp«ssedc-'
negative — yeas 39, nays 49, as follows:
953
HISTORY OF CONGRESS.
954
Marcb, 1802.
Judiciary System.
H. OF R.
YsAs — John Archer, John Bacon, James A. Bayard,
Thomas Boude, John Campbell, Manasaeh Cutler,
SamueJ W. Dana, John Davenport, Ebenezer Elmer,
William Eustie, Abiel Foster, Calvin Goddard, Roger
Griswold, William Barry Grove, Seth Hastings, Jo-
seph Hemphill, Archibald Henderson, William H. Hill,
Benjamin Huger, Thomas Lowndes, Ebenezer Mat-
toon, Thomas Moore, Lewis R. Morris, Joseph Pierce,
Thomas Plater, Nathan Read, John Rutledge, William
Shepard, John C. Smith, John Stanley, Benjamin Tall-
madge, Samuel Tenney, ITiomas Tillinghast, George
B. Upham, Joseph B. Vamum, Killian K. Van Rens-
selaer, Peleg Wadsworth, Lemuel Williams, and Hen-
ly Woods.
Nats — Willis Alston, Theodoras Bailey, Phanuel
Bishop, Richard Brent, Robert Brown, Wm. Butler,
Samuel J. Cabell, Thomas Claiborne, Matthew Clay,
John Clopton, John Condit, Richard Cutts, Thomas
T. Davis, John Dawson, W^illiam Dickson, Lucas £1-
mendorf, John Fowler, William B. Giles, Edwin Gray,
Andrew Gregg, Joseph Heister, William Helms,
James Holland, David Holmes, Geo. Jackson, Charles
Johnson, William Jones, Michael Leib, John Milledge,
Samuel L. Mitchill, James Mott, Anthony New,
Thomas Newton, junior, John Randolph, junior, John
Smilie, John Smith, of New York, John Smith, of
Virginia, Samuel Smith, Richard Stanford, Joseph
Stanton, jr., John Taliaferro, jr., David Thomas, Philip
R. Thompson, Abram Trigg, John Trigg, Philip Van
Cortlandt, John P. Van Ness, Isaac Van Home, and
Robert WilUams.
Mr. Griswold' moved to amend the hill, by
adding to the end thereof a new section, in the
words following, to wit :
*' And be it further enacted, That all suits, process,
pleadingrg, and other 'proceedings of what nature or
kind soever, depending in the circuit court in the dis-
trict of Ohio, and which shall have been commenced
within the Territory of the United States Northwest of
the river Ohio, shall be, and hereby are, from and after
the first day of July next, continued over to the supe-
rior court of the said Territory, next thereafter to be
holden; and all other suits, process, pleadings, and
other proceedings of whatever nature or kind soever,
depending or existing in the circuit court of the said
district, shall be, and hereby are, from and after the
first day of July next, continued over to the next supe-
rior court of the Indiana Territory of the United States
next thereafter to be holden."
MessRi. Griswold, Fearing, Dana, Lowndes,
EnsTis, Bayard, and Rutledge, spoke in favor,
of amending, and Messrs. Giles, Bacon, Elmen-
dorp, S. Smith, and Holland, spoke against
amending the bill.
Mr. EcsTis. — In the negative given to the sev-
eral amendments which have been offered, I per-
ceive a determination to pass the bill in its pres-
ent form. This I regret. I have voted for tnose
amendments from a conviction that they were
proper and necessary, and that others ought to be
made before the bill should pass ; that the defects
of the old system be supplied at the same time
and by the same act which abolishes the present
system.
Satisfied in my own mind of the Constitution-
al right to pass the bill, I have hitherto been silent
on tiiat and every other part of the subject; but as
two of my honorable colleagues have brought the
sentiments of iMa.ssachusetts into the scale ot the
unconstitutionality, I may be permitted to^..state
one. fact expressive of the ideas which whichhave
prevailed in that State. Several years past, and
when no party spirit mingled itself with the con-
sideration, repeated attempts were made to abol-
ish the whole set of inferior courts, and to estab-
lish circuit courts in their stead. A bill for this
purpose passed one branch of the Legislature after
a long discussion, was considered and debated in
the other branch ; an election intervened, the sub-
ject was again revived, and I have never heard
that the Constitutional right was called in ques-
tion. The judges of these courts, of our Supreme
Court, and the judges of the courts of the United
States, hold their offices by the same tenure ; the
cases are similar; and so far as mv information
extends, the sentiment which prevailed in the Le-
gislature pervaded the State. Had this House
been equally free from the spirit of party, 1 can-
not believe this objection would have arisen to
such an height. Confining themselves to the use
of terms, and under the influence of other circum-
stances, gentlemen appear to me to be wrought
up to a zeal which has beguiled their judgments.
With a proper respect for those who difier from
me. I am perfectly satisfied of the Constitutional
right to abridge or abolish, as Well as to extend
and establish courts, as the public good or the
public necessity may require. For the soundness
of this doctrine, without a comment on the Con-
stitution, without opening it in this place, I should
be willing to trust to the construction which
would be given by the common sense of the peo-
ple of the United States, and to rest my reputa-
tion on their decision.
The doctrine contended for by some gentle-
men, is so foreign to the meaning and fair con-
struction of the instrument, so fatal to a primaVy
and elementary principle, and ultimately and in
its consequences so destructive to the very inde-
pendence of the Judiciary, for which they con-
tend, that I would consent to pass the bill, imper-
fect as it is, was there no other way to repel it.
But this is not necessary ; the Constitutional
(yiestion was decided by the vote of last evening.
The right having been established, in what
manner should it be exercised? Not on ordinary
occasions or light causes. A high and solemn
discretion should preside over and direct its use.
Is this an occasion which requires it ? On what
ground is the bill on your table predicated? On
a conviction that the courts, as established by the
law of the last session, are not required by the
wants or circumstances of the country ; that the
provisions therein made are unnecessary and bur-
densome to the people; and that they ought,
therefore, to be reduced. This the bill is intended
to effect ; it abolishes the present and revives and
restores the past system. But the system revived
is allowed to be materially defective. The judges
of the Supreme Court have not been able to com-
ply with the duties required of them. The asso-
ciation of the supreme with the district judges
has occasioned a want of uniformity of decision,
and an increased uncertainty of the law, different
956
HISTORY OP CONGRESS.
956
H. OF R.
Judiciary System,
MarcHj 1802.
judges being called to preside in the same court,
and often over different stages of the same cause ;
whole terras have failed; Legislative acts have
repeatedly been found necessary to continue
action.
What, then, is to be done ? At the same time
that you restore th<^ one and abolish the other,
that which is restored ought to be amended and
rendered competent ; the act should carry on the
face of it its own justification. But, say gentle-
men, we will fi(%t repeal the existing law, abol-
ish the present system, and afterwards, by another
bill, we will provide for the defects of the old.
One of my honorable colleagues believes neither
to be perfect, but that the old is preferable to the
new. This belief will justify his voting for the
bill. Perfection is not to be expected. But what
is the fact ? By passing the bill as it now stands,
we take away a system too competent, and re-
store one superior in principle, but practically de-
fective. To justify the change, that which is re-
stored ought to be rendered competent to the due
administration of justice, or we may be accused
of legislating for men and not for measures. One
honorable gentleman objects to amending this
bill, because amendments were not permitted by
the last Congress to be made to the act which is
now intended to be repealed. This, surely, is not
a good reason. The gentleman would not have
us pursue a line of conduct which he, on a for-
mer occasion, disapproved.
It is objected that, in attempting to amend, the
bill may be lost. How can it be lost ? Will it
not be under a constant control of the majority 1
If there be danger of losing the bill, there is great-
er danger of losing the necessary amendments
after the bill is past. Should this be the case,
what is hazarded? The imputation of having
abolished the present system, because you had the
power, or because you had the will, or from some
motive not honorable or satislactory. If the re-
pealing act. on the other hand, restores the old
system, superior in principle, competent to the
due administration of justice, and free from ob-
jection, (and I would amend it until every rea-
sonable objection was satisfied.) what is the inv
pression 1 You have abolished a system which
was unnecessary and burdensome, and have re-
stored another and a better in its place. You
shut the mouths of your enemies ; you command
the public confidence.
Let the true reason be assigned. The patience
of the House is exhausted. They have seen two
weeks wasted in a wild deviation from the sub-
ject. Far from a wish to revive, I would throw
a veil of oblivion over the past, impenetrable, if
possible, to the eye of a discerning people ; too
often already has the public repose b^en disturbed
by altercations within these walls. Let them
cease. Let us recollect that we owe something
to the community — to ourselves. ' For once let us
bring our prejudices and passions to the law of
oar country.
Let the bill rest on the table for a few days,
until the necessary amendments can be prepared.
In the mean time let the other business of the ses-
sion go on. Take the collected wisdom of the
House, take the assistance of the minority. Gen-
tlemen say they cannot be confided in, as ihey
have declared the act unconstitutional. Make (he
trial. If they refuse their aid they give yoa a
triumph ; if they discover the disposition to em-
barrass, take the business out of their hands and
complete it. Much has been said of public senti-
ment. Sir, the people of this country are weary
of professions. They require the evidence of facts
to satisfy them. They ought, in my opinion, to
have that evidence in the present case; this bill
ought to carry on the face of it unequivocal evi-
dence of the good faith with which it is enacted ;
in forming this opinion, I acknowledge that 1
look beyond the walls of this House.
This is the course which an honorable gentle-
man from Virginia has stated his wish that the
business should have taken at first. This is the
course it ought to have taken, and which it ought
now to take; it is not tooJate.
With perfect confidence in the sincerity of gen-
tlemen who tell us that the amendments will be
made in a supplementary bill, I have also learned,
from some small experience, that there is no cer-
tainty for the future, especially in public bodies.
Gentlemen cannot command or engage for others.
After the bill is passed, I am very apprehensive
the amendments may be disagreed to, and finallf
lost. As no hazard is required, «so none ought to
be incurred.
This has been my view of the subject from its
first origin. Every day has confirmed me that it
was a just view. It has governed my condoct
hitherto, and will direct tne vote I shall finalijr
give.
The question being taken on Mr. Griswold's
amendment, it passed in the negative — yeas 37,
nays 52, as follows :
Yeas — James A. Bayard, Thomas Boade, John
Campbell, Manasseh Cutler, Samuel W. Dana, John
Davenport, John Dennis, Ebenezer Elmer, William
Eustis, Abiel Foster, Calvin Qoddard, Roger Griswold,
Seth Hastings, Joseph Hemphill, Archibald Hendersoo,
William H. Hill, Benjamin Huger, Thomas Lowndn,
Ebenezer Mattoon, Lewis R. Morris, Joseph Pierce,
Thomas Plater, Nathan Read, John Rutledge, Wm.
Shepard, John C. Smith, Josiah Smith, John SUnl^,
Benjamin Talimadge, Samuel Tenney, Thomas Til*
Unghast, George B. Upham, Joseph B. Varnnm, Kil-
lian K. Van Renaselaer, Peleg Wadsworth, Lemuel
Williams, and Heniy Woods.
Nats — Willis Alston, John Archer, John Bacon,
Theodorus Bailey, Phanuel Bishop, Richard Brent,
Robert Brown, William Butler, Samuel J. Cabell,
Thomas Claiborne, Matthew Clay, John Clopton, Jobs
Condit, Richard Cutts, Thomas T. Davis, John Daw-
son, William Dickson, Lucas Elmendorf, John Fowler,
William B. Giles, Edwin Gray, Andrew Gregg, Jo-
seph Hcister, William Helms, William Hoge, James
Holland, David Holmes, George Jackson, Wm. Jones,
Michael Leib, John Mtlledge, Samuel L. MitchiHi
Thomas Moore, James Mott, Anthony New, Thomw
Newton, jr., John Randolph, jr., John Smilie, John
Smith, of New York, John Smith, of Virginia, Samnrl
Smith, Richard Stanford, Joeeph Stanton, Jr., John
Stewart, John Taliaferro, jr., David Thomas, Phil?
957
HISTORY OF CONGRESS.
958
March* 1802.
Jiuliciary System*
H. OF R.
R. Thompson » Abram Trigg, John Trigg, Philip Van
Cortlandty John P. Van 'Seas, and Isaac Van Home.
ADother motioD was then made, and, the ques-
tion being put that the said bill be recommitted to
a select committee, to consider and report thereon
to the House: it passed in the negative — yeas 36,
nays 55, as follows :
Yeas — J. A. Bayard, Thos. Boude, John Campbell,
Manasseh Cutler, S. W. Dana, John Dayenport, John
Dennis, William Eustis, Abiel Foster, Calvin Goddard,
Ro^er Griswold, William Barry Grove, 8eth Hastings,
Joseph Hemphill, Archibald Henderson, William H.
Hill, Thomas Lowndes, Ebenezer Mattoon, Lewis R.
Morris, Joseph Pierce, Thomas Plater, Nathan Read,
John Ratledge, William Shepard, John Cotton Smith,
Josiah Smith, John Stanley, Benjamin Talimadge,
Samael Tenney, Thomas Tillinghast, George B. Up-
ham, Joseph B. Vamum, Killian K. Van Rensselaer,
Peleg Wadsworth, Lemuel Williams, and Henry
Woods.
Nats — Willis Alston, John Archer, John Bacon,
Theodoras Bailey, Phanuel Bishop, Richard Brent,
Robert Brown, 'William Butler, Samuel J. Cabell,
Thomas Claiborne, Matthew Clay, John Clopton, John
Condi t, Richard Cutts, Thomas T. Davis, John Daw-
son, William Dickson, Lucas Elmendorf, Ebenezer
Elmer, John Fowler, William B. Giles, Edwin Gray,
Andrew Gregg, Joseph Heist cr, William Helms, Wm.
Hoge, James Holland, David Holmes, George Jackson,
Charles Johnson, William Jones, Michael Leib, John
Milledge, Samuel L. Mitchill, Thomas Moore, James
Mott, Anthony New, Thomas Newton, jr., John Ran-
dolph, jr., John Smilie, John Smith, of New York,
John Smith, of Virginia, Samhel Smith, Richard Stan-
ford, Joseph Stanton, jr., John Stewart, John Taliafer-
ro, jr., David Thomas^ Philip R. Thompson, Abram
Trigg, John Trigg, Philip Van Cortlandt, John P. Van
Ness, Isaac Van Home, and Robert Williams.
Another motion was then made and seconded
to amend the bill, by adding, to the end thereof,
a new section, in the words following, to wit :
"And be it further enactedy That, in all cases in
which proceedings shall, on the said first day of July
next, be pending under a commission of bankruptcy
issued from a circuit court, or a circuit judge, in pursu-
ance of the aforesaid act, entitled 'An act to provide
for the more convenient organization of the courts of
the United States,' the cognizance of the same shall be,
and hereby is, transferred to, and vested in, the district
judge of the district within which such commission
shall have been issued :"
And, on the question thereupon, it passed in the
negative — yeas 33, nays 36, as follows :
Yeas — James A. Bayard, Thomas Boude, John
Campbell, Manassoh Cutler, Samuel W. Dana, John
Davenport, Abiel Foster, Cadvin Goddard, Roger Gris-
wold, William Barry Grove, Seth Hastings, Joseph
Hemphill, Archibald Henderson, William H. Hill,
Thomas Lowndes, Ebenezer Mattoon, Lewis R. Mor-
ris, Joseph Pierce, Thomas Plater, Nathan Read, John
Ratledge, William Shepard, John Cotton Smith, John
Stanley, Benjamin Tallmadge, Samuel Tenney, Thos.
Tillinghast, George B. Upham, Joseph B. Vamum,
Killian K. Van Rensselaer, Peleg Wadsworth, Lemuel
Williams, and Henry Woods.
Nats — ^Willis Alston, John Archer, John Bacon,
Theodorua Bailey, Phanuel Bishop, Richard Brent,
Robert Brown, William Butler, Samuel J. Cabell,
Thomas Claiborne^atthew Clay, John Clopton, John
Condit, Richard Cutto, Thomas T. Davis, John Daw-
son, William Dickson, Lucas Elmendorf, Ebenezer
Elmer, William Eustis, John Fowler, Wm. B. Giles,
Edwin Gray, Andrew Gregg, Joseph Heister, William
Helms, William Hoge, James Holland, David Holmea,
Georgo Jackson, Charles Johnson, William Jones,
Michael Leib, John Milledge, S. L. Mitchill, Jas.Mott,
Thomas Moore, Anthony New, Thomas Newton, jun«,
John Smilie, John Smith, of New York, John Smith,
of Virginia, Josiah Smith, Israel Smith, Richard Stan-
ford, Joseph Stanton, jr., John Stewart, John Taliafer-
ro, jun., David Thomas, Philip R. Thompson, Abram
Trigg, John Trigg, Philip Van Cortlandt, John P. Van
Ness, Isaac Home, and Robert Williams.
Another motion was then made and seconded
that the said bill be read the third time on Mon-
day, the fifteenth instant ; and, on the question
thereupon, it passed in the negative.
Another motion was then made, and the ques-
tion being put. that the said bill be read the third
time on Monday next, it passed in the negative.
And then the said question being taken that the
said bill shall be read the third time to-morrow, it
was resolved in the affirmative.
Wednesday, March 3.
JUDICIARY SYSTEM.
The bill sent from the Senate, entitled ^' An act
to repeal certain acts respecting the organization
of the Courts of the United States, and for other
purposes," was read the third time.
Mr. Clopton rose and said — Mr. Speaker, hav-
ing-yoted against striking out the first section of
the bill before you, and intending to vote for the
passage of it, I wish that the principal reasons
which ffovern me in that vote should go forth with
it I, therefore, am induced to ask the indulgence
of the House for a few minutes, in order to state
those reasons. In doine this, I beg leave to as-
sure the House, that I shall not depart from the
question to wander into remote regions, but shall
confine myself closely to the bill itself; that I shall
endeavor strictly to avoid the introduction of ex-
traneous matter; that, as I have risen purely for
the purpose of announcinp^ the reasons on which
my vote is grounded, so shall it be my particular
care, not to trouble the House with any remarks
which do not apply to the important subject on
which that vote is to be given.
Gentlemen opposed to the bill hare contended
that it is both unconstitutional and inexpedient.
With respect to the latter point of discussion, I
will remark, in a very few words, that I am strong-
ly impressed with a belief, that it is expedient,
from a view of the business now before the courts,
which it proposes to discontinue. From the de-*
crease of that business, which has, in fact, been
brought about under the old system ;• from the ac-
tual decrease and great probaoility of still further
decrease of the sources of future litigation on
subjects properly of Federal jurisdiction, it ap-
pears to me, sir, that the new courts are entirely
unnecessary. The document, which has furnished
959
HISTORY OP CONGRESS.
H. OP R.
Judiciary System,
March, 1>^
a statement of the business, though it has been
much cavilled at, and, by som£ gentlemea, de-
clared to have been improperly communicated
to the House, I consider, not only a very proper
subject of communication, hut as furnishing a de-
gree of information highly useful to guide our in-
quiries on this point. To me. I confess, it has
afforded a view of the subject, which contributes
very much towards convincing me of the inutil-
itv of the courts, to discontinue which, is the object
of this bill. Under these circumstances, while I
believe it to be a good maxim not to multiply of-
fices unnecessarily I nor to create expensive sys-
tems that are useless, both from political consid-
erations and from considerations of economy, my
impressions are, that the bill is expedient and
proper.
On the other point of discussion, much, indeed,
has been said. On this ground, gentlemen have
declaimed with great vehemence. They have
displayed much animation, much pathos, and with
abundant zeal, they have contended that the Con;
stitution gives no authority to pass this bill.
In support of this doctrine, that part of the Con-
stitution is taken for its strong ground, which is
contained in the first section of the third article;
for reading which section. I hope the House will
pardon me, although it has already been often
read — in these words :
** The Judicial power of the TJnited States shall be
▼ested in one Supreme Court, and in such inferior
courts as the Congress may, from time to time, ordain
and establish. The judges, both of the Supreme and
inferior courts, shall hold their offices during good be-
haviour; and shall, at stated times, receive for their
services a compensation, which shall not be diminished
during their continuance u\. office."
Gentlemen opposed to the bill have contended
that this section secures a perpetuity to all courts.
They have contended that, if Congress shall, at
any time, have exercised the power granted in the
first article — that of '* constituting tribunals infe-
rior to the Supreme Court," by this section they
are inhibited from annulling any of them on any
account whatsoever. They have contended that,
if a power to abolish is admitted, the independ-
ence of the judges will vanish ; and that an act
to abolish will deprive the judges of an absolute
right, which, they say, is vested in them by this
section of the Constitution.
In considering this part of the subject, I beg
leave, first, to make a few remarks on that inde-
pendence, a theme on which gentlemen have di-
lated very copiously.
Here, sir, I would beg leave to ask, are not the
judges as completely guarded as they can be,
against any arbitrary removal from office? It is
by all acknowledged, that they are placed beyond
the reach of the Executive department. They
are also placed above any dependence on the Le-
fislature for compensation for their services, by
aving salaries previously ascertained by law,
which cannot be diminished during their contin-
uance in ofiice. So long as they behave well they
cannot be removed from their offices, but are enti-
tled to hold them, if the offices exist so long, and
their salaries cannot be reduced. DuriD?:/'
continuance, therefore, in office, while in IlJ?^^
tual performance of their duties, theaciaale:'
cise of administering justice, the great end of -f-
curing their independence in the exercise (fr*
duties of their offices, under the coDstruciios ?:^
tained in this bill, is, I conceive, as effectuallT ii-
swered, as if the courts were immoTably §k
an d were to ex ist for ever. If at any time it ir^:
be found that any of the courts are UDoecesan
and that it will be more for the public mr^ii
abolish, than to continue them, with their a^;
tion their duties cease; and then the judge} r.
have no services to render, and, coDseqanr
no longer need to be shielded from irDp.v
influences.
For what reason, I would ask, was ihe prsf
pie of securing the independence of judges aJ-
ed ? Was it not for the purpose of promoi::;i
faithful and upright d isc barge of their doti?: .
office? Surely, it was ; and in order toplawt;^-
beyond the power of removal by odc hmt:~
the Government, and beyond the fear of bir::
their salaries reduced by the other brancli lj>ti
they should be. left subject to either of ikx--
pressions, they might, in the exercise ofife^^-^
of their offices, be loo much inclined tosii^'^i
the other branches ; this provision, 1 tf^'i^^
was inserted in the Constitution in order loi?--"
that important object, their independence in i"'
which independence, I believe, remains ud? .t ■
by the principle of the bill, as to all tbeporp-^
intended, and fully satisfies the Constiiutioii. .
is sufficient that this object be secured soU.''
there is a necessity for it ; that is losajf.JO^^
as there is a necessity for keeping uptnecJ!^
If that necessity ceases, or if courts have b«B ^
ated when there existed no necessity fori^'
can it be a rational, can it be a proper cos ';
tion of this part of the Constitution, or. ioie^-
any other part of it, to say that, although ibeccc
should be unnecessary, (for such is the ext?
the doctrine opposed to the bill) and. al^-'J
the independence of the judges is complei?'^-"-'
their continuance in the offices, ne?erihele>i
courts must be for ever kept up ? Does ss^j
construction necessarily result from these »^"
" the judges, &c., shall hold their offices dt-j
good behaviour?" Is there any idea of perp^'^
attached to the word "offices," or to an* «-
words, in this sentence? Sir. I cannot p*^*'
any such necessary construction. I canaJ' "*
ceive that any such idea is involved intbe'
lence. I cannot discover any natural conna
between any such idea and this sentence, f
part of it. The phrase, " during good behaT) -
IS a phrase well understood, as contradisiing^* '
from the phrase " during pleasure," and its -^
no idea of perpetuity to the office. It hasoo^
ence to the duration of the office. It 11111*^'
deed, that the office shall be holden, not 2:
will of another person, but on the good bew-
of the officer. It does not follow, therefoff •;
the duration of the office must necessarilv »f^-
mensurate with the good behaviour of ihfp^^"
on whom the office had been conferred. or h'^^
961
HISTORY OF CONGRESS.
962
March, 1802.
Jtidiciary System,
H. OF R,
will to hold. I beliere that an office may be cre-
ated expressly for a term of years, and be filled by
an officer to hold during good behaviour. Althougn
he continues to behave well beyond the terra, yet,
at its expiration, there is an end of the office. Thus
an office may be created for a term of ten years.
A may be appointed to hold this office during good
behaviour. You cannot remove him from this
office at ail, while he behaves well ; but, at the
expiration of ten years, the office ceases, of course.
A cannot be sdid to be removed from the office by
its cessation ; for he cannot be removed from a
nonentity. But if he hold at the pleasure of B, at
any time before the expiration of the term, B may
deprive him of the office ; and then he may be said
to be removed from the office, because itstill contin-
ues in existence. So, also, I think, an office created
for an indefinite term, as these courts are, may be
discontinued ; and, although the officer hold dur-
ing good behaviour, he cannot be said^to be re-
moved by its discontinuance; but, if he hold at
the pleasure of another person, he may, by him, be
removed before a discontinuance of the office. The
cases are analogous, I think, at least in relation to
the effect produced by a cessation of t^e offices in
both cases. For, as m the first case, tne officer is
entitled to hold the office during the term of ten
years, which is the whole term of its existence, if
he continues to behave well ; so, in the latter case,
the officer is entitled to hold during the existence
of the office, if he exists so long and continues to
behave well.
It will not be pretended that the tenure of
the office, in the first case, is violated by its ces-
sation at the fixed period of ten years, the term
for which it was created ; neither can it be justly
said that, in the latter case, the tenure is violated
by the determination of the office, although no
definite term of existence was affixed to it at the
time of its creation. In each case the tenure of
the office rests equally on the ground of '^ good
behaviour," and continues on that ground, without
interruption, during the existence of the office.
Hence, the words, " shall hold their offices during
good behaviour," can only apply to existing offices,
and designate the species of tenure, by which they
are holden during their existence ; but do not re-
fer to the duration of the offices, or determine the
period of their existence. The whole reasoning
of gentlemen against this principle is grounded on
the position, that the phrase gives a kind of per-
petuity to the offices. This is, undoubtedly, beg-
ging the question. It is first assumed as a datum
that the offices derive such a perpetuity from those
words, and then it is inferred that tne power of
the Legislature cannot reach them. On the other
hand, tne converse of this proposition is believed
to be true. It is contended, in favor of the bill,
that a contrary construction is most natural ; that
it is more apparent that the words give no such
perpetuity ; that, consequently, the offices may be
abolished by the same power which created them ;
and that such abolition does not violate the ten-
ure by which the judges held them. Sir, from
such a view as I have been able to take of this
subject^ and which I have had the honor just now
7th Con.— 31
to submit to the House, this deduction appears to
me to be a fair and a regular one.
I will now proceed, sir, to consider the other
position, which has been laid down by gentlemen,
that the judges have a vested right in their offices,
from whence it has been argued, that an act to
abolish courts deprives the judges of that right;
and upon that ground it has been contended, that
the section of the Constitution which has been
cited, inhibits the Legislature from passing any
such act. It has been strongly insisted that, from
these words, " the judges, <&c.. shall hold their
offices during good behaviour," tne duration of the
offices, that is^ of the courts, shall be at least com-
mensurate with the duration of the good beha-
viour of the judges ; indeed, the idea seems rather
to be that, when once created, they cannot be
constitutionally abolished; that, so long as the
judges behave w^ll, the offices belong to them ;
and that the court must be continued in existence
for their benefit, whether the public interest re-
quires it or not, or even although a continuance
of them should be injurious to the public interest.
In considering the force of this reasoning, though
I have already troubled the House with some re-,
marks, which, I think, apply to this point ; yet, I
hope to be pardoned for taking a further view of
it, m doing which I beg leave to revert to the first
clause of the section which has been cited — "the
Judicial power of the United States shall be vest-
ed in one Supreme Court, and in such inferior
courts as the Congress may, from time to time,
ordain and establish." This clause, I think, in
express terms, recognises in the Legislature a full
power over this subject. Here, Mr. Speaker, not-
withstanding what has been said to the contrary,
it is clear that the words, " may from time to time
ordain and establish," do leave a discretion with
the Legislature ; and if it were to be admitted, as
seems to have been contended for, that the Con-
stitution, by designating^ and limiting the jurisdic-
tion of the Supreme Court, presupposes the ex-
pediency of establishing some inferior courts ; yet
I apprehend that it will not be denied, but by all
acknowledged, that the clause gives to Congress a
discretionary power of determining the number
and the kind of courts. If so, and if, in the exer-
cise of this discretionary power, at any time^ the
Congress discovers that too many courts of im-
proper structure have, been created, does there not
exist in the Congress which discovers this evil,
the same and equal power to correct it, with that
which existed to authorize the former Congress
to create those courts. To deny this, would be to
deny this Congress powers of legislation equal to
those which the former Congress possessed.
Again, would it not be preposterous to say, that
the Congress have a discretionary power of fixing
the number of courts, and yet shsQl exercise that
discretionary power but in one way ; that is, in
au^mentin^ the number, but shall never exercise
it in diminishing the number. This would, in-
deed, be a curious kind of discretion. It would
be the acme of absurdity to call it a discretion.
They must, therefore, have the discretion in the
latitude contended for, or they have none at all ;
963
HISTORY OF CONGRESS.
H. OP R.
Judiciary System.
Mabch, \^i
and, if they have any at all, they have the power
to annul courts when the public good requires it,
as well as to create them; It is evident, therefore,
that such a discretionary power as this which I
have stated does exist; and that the section of the
Constitution which has been adduced for the pur-
pose by the opponents of this bill, does not vest in
the judges such a right, such an absolute property
in their offices, as to place them beyond the reach
of the Legislature, and so as to inhibit the Legis-
lature from annulling such of the courts as it shall
be found necessary or expedient for the public
good to annul.
Further lo test the accuracy of this deduction,
permit me. sir^ to take a view of the Constitution,
and to analyze its principles. Whenever I con-
template this valuable system. I perceive, from its
nature, as a Federal Government, that it is a Gov-
ernment of specific, limited powers. I perceive,
to a demonstration, that, wherever power is grant-
ed, the benefit or good of the people must always
be understood to be the primary object of the
grant; that the powers granted are special pow-
ers for special and particular purposes, which are
secondary objects and means of attaining the
primary one; that the department to which a
power is entrusted should be nlways responsible
to the people for a proper application and use of
that power towards the attainment of both ob-
jects; and that it must be competent to the parti-
cular purposes for which it was granted; other-
wise, there would be a responsibility on the depart-
ment, without sufficient power to discharge its
obligation to the community.
I will now beff leave, sir, to apply these prin-
ciples to some of the grants of power enumerated
in the Constitution ; and, if tney apply to any,
they apply to all. I will begin with the first
grant.
The Congress shall have power " to lay and
^collect taxes, duties, imposts, and excises; to
' pay the debts and provide for the common de-
* fence and general welfare of the United States;
' but all dunes, imposts, and excises, shall be uni-
* form throughout the United States." These are
the special purposes for which the power is grant-
ed. The Congress is the department, in exercis-
ing this power, to effect these purposes in the
best manner it can, and most for the interest and
convenience of the people, under the restrictions
specified in the grant; herein consists its respon-
sibilitv. Its power mu»t be competent to make
such laws immediately connected with these ob-
jects, as shall be necessary to effect them ; other-
wise, it would be responsible, without sufficient
power to discharge that obligation.
Passing over other grants, for the sake of brev-
ity, I will proceed, sir, to a grant immediately re-
lating to the subject, which has been debated.
The Congress shall have power " to constitute
tribunals inferior to the Supreme Court." Here
the special purpose for which the power is grant-
ed, is to "constitute inferior courts." Again, the
Congress is the department to whom the power
is entrusted. It is responsible to the people, to
provide, from time to time, for the due adminis-
tration of Federal justice, in the best mance!
can. and most for the interest and conveoieD^. :
the people ; and it must be competent. Herer
is the important point in question— it mQ^; ir
competent to what ? According to ihe price pi
which have been stated, it. must becompeies::
enact, from time to time, such lawsiiDmektei
relating to that subject as shall be necessarfiL.
proper for making such provision; othemieii:
responsibility would be unattended with pp
adequate to a full discharge of its obligatioo. h
friends of the bill before you contend. $ir, ii:
towards the establishment of such a prorisioD i^
bill is necessary and proper; that the inierestu:
convenience oi the people will be better serrtiH;
abolishing the system than by its continuasce
But gentlemen have contended that thepofr
in this case does not extend so far as loauihcr^
the repeal of a law which had already cc^k
courts; for, that the clause only ezpressesa|K>
tive grant of power to constitute courts; thrift
fThnt merely authorizes a creation of neweocj
m addition to the old, or a neworganizatiotc
the old courts. Sir, the same feature IDarbfT^
ry clause ioiithe enumeration. How.thec,i^^:
inference drawn in this particular cz^i l^i'
contended for, because a power to repesi^K*
expressed in the grant? No such power u ex-
pressed in any of the grants. Will it, the?r«R
be also contended that a law " to lay and cclif'
taxes, duties, imposts, or excises,'' cannot be it-
pealed ; or that, if any law should be passed rea-
tive to either of those subjects, it mostlxili*
either for laying and collecting newtases,duii3
imposts, or excises, in addition to the old. or i'
new modelling the old ones? Sir, I can o^^*
take to vouch for gentlemen, that such an il^"^
dity will not be assented to; and yetIdoDc:st
how it can well be avoided, if the infereDwi'C-
sisled upon in the other case. Thepowerof^
peal. I believe, sir. equally exists in both cl«
and the responsibility attached to this depart!3«£
of the Government requires an exercise oi tt
power, in both cases, whenever it is found tc:<
expedient for the public good, aswellasiai-
other cases where that power exists. To <i^'
this, would be a denial or all discretion to the le-
gislative department ; a denial of sufficient p.'^
to support its responsibility, or to eflfect the re-
poses for which the special grants of powers b.
been confided to it.
Mr. Speaker, having endeavored to show (c^
to my mmd, the deductions are perfecilj' c«f
that the doctrine which has been contended icf f
gentlemen opposed to this bill, is not ^upp^'^-
by the section of the Constitution which has 1*^
often cited, and on which they have mDchri.'^i
that it is not adverse lo the principle of the j
but reconcilable to it, and will not be violaif£ •
its operation, either as it respects therequimi-
dependence of the judges, or as it regards the''*'
ure of their offices, i will how, with permi^^'^;;,
the House, proceed to stale a few ideas resalu^
from a comparison of their doctrine and theif f"^'
struction or that section with the general f^-'
pies of our Government.
965
HISTORY OF CONGRESS.
966
March, 1802.
Jtuliciaj-y System,
H. OP R.
I presume, sir, that in the construction of an
instrument it must ever be incorrect to give such
interpretation to any clause of that instrument as
wouJd militate against the main designer end of
the instrument. I apprehend that every construc-
tion to be correct must support that object. This
[ hold to be a good rule in respect to any instru-
ment, however small its dignity. If this beacor-
rect idea, of how much importance must it be to
id here to the rule in constructions of the Consti-
tution of our GoYernment!
Sir. I profess not to be a legal character, or to
derive ideas on this head from that kind of re-
search which professional gentlemen are accus-
tomed to pursue. I form my opinion from the
reasonableness of such a rule, and the obvious
tendency of a contrary rule. I figure to myself a
striking distinction between the two modes of
construction. While the one cherishes and pre-
serves the Constitution in its true and natural
state of energy, the other must unquestionably
enfeeble it, and eventually annihilate its vital prin-
ciples.
The American mind is so well instructed in
the great and essential principles which form the
i>asis of our Government, the leading character-
stic features of which are so strongly marked;
its pre-eminent attributes so clearly distinguished
from the genius of the corrupt systems of the old
world, and springing, as it does, from the only le-
gitimate source on earth — the people; that its
irst and greatest object is universally recognised,
ind would have required no explicit declaration
:o the world to show what it was, yet it is seen in
:he preamble of the Constitution. Among other
important purposes for which the people of the
United States have declared that tney ordained
md established this Constitution, one is to pro-
mote the general welfare. This indeed may be
said to comprehend all the other specific objects
3f ies institution ; and every benefit and advan-
tage derivable to the United States from a jusi
md proper exercise of the powers delegated to
them by this Constitution may, not improperly,
be concentrated in this expression. I consider
the term as synonymous with the public good. I
relieve, therefore, that I am bound to keep stead-
ly in view this great object, whenever I venture
:o put constructions on any part of the Constitu-
lion, and to explode all constructions not compat-
ble therewith.
Sir, when I listened (as I have with close at-
tention) to gentlemen, and heard them contend-
ing with unusual degree of warmth, that the
Legislature have no authority to annul courts,
and urge for reasons that the judges have a prop-
erty in their offices, I was induced to believe from
the course of their arguments that, if we are to
be guided by them, they would direct us to this
conclusion, that, if no salaries were involved in
the question, in discussing the constitutionality
of this bill, proposin|^ a repeal of '' certain acts
respecting the organization of the courts of the
United States," there would be no inquiry into
the right of merely abolishing the courts; that it
is the efiect which the abolition will have in re-
lation to the salaries, and not the efiect which it
will have in respect to the administration of jus-
tice, which is considered as rendering the repeal
unconstitutional, or rather the constitutionality of
it would not then be questioned at all. This ob-
ject, so zealously contended for, is called the inde-
pendence of the judges. It is not deemed suffi-
cient security for their independence that they
really possess it by having salaries, which cannot
be diminished while they continue in office, and
from which offices they cannot be removed while
they behave well, even if it be to the end of their
lives, if the office exist so long; but it is urged
also that the offices must be perpetual, in order to
perpetuate the salaries. Considering this object,
therefore, as the mainspring of the doctrine which
has been thus advocated, I contend, sir, that it
cannot stand when tested bv sound principles. I
feel certain in my mind tnat it is incompatible
with the genuine republican principle which
ought ever to be maintained as a vital, essential
attribute of our Government — incompatible with
that fundamental principle, which makes the good
of the people the paramount object of our Con-
stitution.
In this Government, then, where the good of
the people so confessedly is the supreme object. I
believe it is dangerous to sanction a doctrine liKe
(his, which goes to declare that in fact no consid-
erations of public utility are allowed by the Con-
stitution to oe of sufficient avail to aoolish any
courts which have once been created, merely be-
cause such abolition will afiect the interest of the
judges.
This doctrine may suit the genius of despotic
government, wherein not the welfare of the peo-
ple, but the aggrandizement of their rulers is al-
most the sole object; where the body of the peo-
ple are indeed considered as mere property, and
even preserved in existence more for the purpose
of swelling the pomp, the pageantry, the splendor
and magnificence of those who domineer over
them than for any other purpose ; where the ^reat
mass of the people, so far from having any rights
protected by the Government, are the miserable
subjects of oppression in every shape which fancy
can devise, and which a mixture of whim and
cruelty can inflict. In that kind of Grovernment
there is indeed color for a doctrine, which would
perpetuate offices for the benefit of those who hold
them, in exclusion of every consideration in re-
spect to the people.
But does not the genius of our free Govern-
ment utterly forbid that the interest of any indi-
vidual should be consulted in preference to the
good of the community, when the good of the
community and the interest of that individual
shall come in competition? Surely it does, and
yet what is the scope of the doctrine which has
been so strenuously contended for in opposition
to a repeal of the law in question ? It positively
maintains that, although the present Legislature
should have the strongest evidence that the courts
created by that law are unnecessary, or even if
there should be unquestionable ground to believe
that a continuance of them would be injurious to
967
HISTORY OF CONGRESS.
VVL
H. OP R.
Judiciary System.
Maech, Is'l
the interests of the comtnunily ; nevertheless, be-
CHUse an abolition of them will be followed by a
cessation of salaries to the judges, whereby their
interests will be affected — the interests of those
particular individuals shall preponderate and for-
oid the repeal. Does not this position flatly con-
tradict that valuable principle of our Govern-
ment, which maintains that the good of the com-
munity should be the great object of all our in-
stitutions? To my mind, this conclusion is per-
fectly clear, and the doctrine is in complete hos-
tilitv to that principle.
Ir, sir, we retrace the course of discussion in
this case, how has it stood? On the one hand the
bill has been advocated and supported, as to its
expediency, on the ground that the courts in ques-
tion are unnecessary and productive of useless ex-
pense to the community ; that this circumstance
of itself would be good reason, if no other exist-
ed, though it is deemed that other strong reasons,
taken in connexion with this, do exist, why the
courts should be discontinued. On the other hand,
the doctrine contended for in opposition to this
bill is tantamount to a positive affirmance that,
whether the courts are necessary or unnecessary,
you must not put them down ; that, in whatever
manner the public interest may be affected, the
courts must be suffered to remain in force; that
the interest and convenience of the public in this
case, must yield to the particular interest and con-
venience of the judges; that the courts were no
sooner created tnan they were enshrined within
the veil of the Constitution ; thai the Constitu-
tion is to them a sanctuary, which should protect
them against the rude hand of legislation; that
you break through this sanctuary, you sacrilegi-
ously violate it, if you dare to enter and interrupt
the permanence of the courts ; that you strike with
unhallowed hands, if you presume to strike out of
existence any of those offices, after having once
been in possession of the judges; that howmuch-
soever you may think the public good requires it,
however detrimental to the public interest you
may think a continuance of the courts will be.
you must not touch the law which creates them,
at least, any further than to amend ; that the courts
are sacred, because, if you undertake to annihi-
late them, the consequence will be that the judges
will sustain the loss of salaries; and you have no
authority to cause such a loss to the judges, in or-
der to promote that which you conceive to be the
Eublic good, or to discontinue what you appre-
end to be injurious to the public interest; that
the Constitution secures to those officers salaries
for life, and inhibits you from any act, which di-
rectly or indirectly, mediately or immediately, has
a tendency to operate a deprivation of them,'not-
withstandingany such publicconsiderations. Such,
sir, is the very essence of the arguments adduced
by gentlemen opposed to the bill before you. so
far as they apply to the question of constitution-
ality. But, good God! can this be the language
of our Constitution? Tf every page in the vol-
ume of this sacred instrument was to be carefully
unfolded, and examined with the strictest eye. is
^here a single sentence to be found which breathes
such language? Can the eye trace out k&
most laborious search even a single word td ti
can bear such construction? I am i)ersQa<ietl.M:
Speaker, that I should commit an high offer!
against the sanctity of this venerable iDstniDri:
were I for a moment to indulge a belief ihir.::
a sentence, such a word, could be foand.
In anotner point of view, Mr. Speaker, I ?::•
sider the tendency of this doctrine to be hi: r
objectionable. It is confidently believed. &$ it
been before slated, that the courts proposed t:'»
annulled by the operation of this bill are uoiif?!*-
sary ; that consequently a continnance of u*:
will be attended with an useless expense. lf.df:
the due administration of justice, tne onlrob/^
for which courts ought to be established, doe: :::
require the aid of those additional courts iooHc
to effect that object, they must be an useless l^j-
den upon the country.
Contemplating these circumstances, ihm^.:"
as attending this case, and supposing the dwji:?
which has been advocated to operate as g^t^
men have contended for, I am inevitably dnr
to this conclusion, that, i^ it should beatt^l^i
as a principle that courts once constituted. ti^^
on experiment, cannot be abolished hj aurpcrer
existing under the Constitution, howeveias'*
ces.sary, however burdensome they maj* bef^i
to be; then will the Constitution exhibit thai ?:•
guiar phenomenon in the political world.*'::'
will be capable of producing an evil, towb.rt'
will not be capable of applying any remcJf.iS'
that evil is found to have been produced. It*
then be determined that this instrument f^'^
power to legislate so as to create an evil and :*.::
to augment that evil, but that it gives no p'"
to legislate so as to diminish the evil; thatiiti-
thorizes an extension of the mischief orfwjJw^*
but that it denies all right or authority to cotes'-
the sphere of the miscnief.
There is another consideration of no smaU-
ment, and highly worthy of remark. Poblics-
stitutioDsin all governments, particularly is (^
infancy, and still more particularly in thein'^i:'
of Republics, are more or less experimental ^-^
a solecism, then, does this doctrine present tc->
It pronounces this strange and contradictory f^>
osition that, although a system, originated rat^-.
by legislative act, shoula be tried and fouod cjj*
less, defective, or even vicious, nevertheless it f*
not be subject to any radical correction; ibai t-
power which formed the system is incompft^
to cure its defects; has no right or authoriip-
ameliorate the system in such a maDaeror-
such extent as that power should deem nece<>i^
and proper. Sir, wnat would be the conseqB^""
of the establishment of such a principle a^-^
Would it not have a direct tendency to arrest'^'
benefits derivable to society from theproerfts-
experience? Such undoubtedly would be it?-*
eration — an operation which would in fact?-
defeat one of the greatest advantages accruic?
mankind from the social state.
Experience must be acknowledged to be a r^*'
source of improvement, and it is an import*''^ ''^
tribute of free government, which require ^
969
HISTORY OF CONGRESS.
970
March, 1802.
Judiciary System,
H. OP R.
its institutions should receive such improvements,
as shall be discovered from that source to be es-
sential for the benefit of the people. Hence the
doctrine, which has been contended for, presents
itself in an attitude extremely hostile to that prin-
ciple, inasmuch as it does not allow that extent of
improvement in judicial systems which experi-
ence might dictate; for it is not to be imagined
that these systems any more than other institu-
tions can always receive the highest degree of
improvement from merely a new modification of
the existing arrangements; but that sometimes
more radical alterations may be necessary in or-
der to the attainment of that end. The system
now proposed to be discontinued is believed to be
precisely in that predicament. I am not unmind-
ful, Mr. Speaker, that gentlemen have said that
this system has not been tried long enough to test
its propriety or usefulness. On the other hand it
has been equally contended that the system^ al-
though it has not been for any considerable time
in operation, is nevertheless attended with suffi-
cient evidences of its inutility ; and, indeed, that
the circumstances of the country did not require
it at the time of its creation ; that it had all the
marks of impropriety about it when first brotight
into existence. But. independently of these cir-
i^umstances, L cannot accede to the doctrine. Its
principle is the same, and would equally applyi if
the system had been commenced with tne first
iransactions of the Grovernment, and had been
found from an experience of twelve years to be
palpably useless. It is the principle of the doc-
irine, which would operate universally, and apply
IS well to a long as to a short term of experience,
:hat I explode.
Mr. Speaker, I have submitted to the honorable
House these reasons, which are most impressive
)n my mind, in favor of the vote which I am
ibout to give on the very important subject of
he bill before you. Those which have reference
0 the great Constitutional question that has been
igitated, are the result of such a view of the Con-
titution, as my own judgment has been able to
ake on a serious and diligent examination of it.
!)n a subject so momentous, I have deemed it a
luty which I owe to my country and to myself
o pursue this course of investigation. While I
lave approached this subject with a degree of
we, I have endeavored to bestow upon it the
dost deliberate consideration. I have also at-
ended closely to the arguments of c^ntlemen
gainst the bill, and, weighing them aispassion-
tely and with candor, I must say that I have
leard nothing which has convinced me that the
ssue of my researches is an improper one; on the
ontrary, I feel confirmed in the belief that the
loctrine which gentlemen have advocated in op-
position to the bill, is neither supported by any
xpress provision in the Constitution, nor com-
tatible with its essential principles.
In this discussion gentlemen have taken a wide
ange, and travellea into fields far remote from
he real object of debate. But, not content with
uch a latitude of argument, some have inter-
that the friends of this bill are careless whether
they violate the Constitution or not. Sir, I regret
that sentiments so uncharitable should have been
fostered. At the same time I owe it to myself
utterly to deny the justice of the imputation. I
ewe it to myself to assert, that, notwithstanding,
all the noisy declamation we have heard, and all
the pompous declarations of zeal for the Consti-
tution which have been uttered. I will not con-
sent to yield to any of those gentlemen, either in
veneration for this sacred instrument, or in solici-
tude for its defence against any kind of infrac-
tion. I enteriain not the smallest doubt but that
those gentlemen with whom I have the honor to
act are animated with similar sentiments.
Sir, we have been warned, frequently and sol-
emnly warned, against passing this bill. Alarm
upon alarm, and threat after threat, have been
sounded in our ears. The cry of " unconstitution-
ality" has been reverberated again and again. In
language strong, positive, and unequivocal, we
have been repeatedly told that we are about to
break down one of the main pillars of our Con-
stitution, and to unsettle the whole foundation of
our €k)vernment. We have been emphatically
called upon to stop — to pause — to reflect — to re-
consider, and to desist from this attempt !
Sir, I should not have waited for either the
threats or the admonitions of those gentlemen, if
I had felt any apprehension that this bill would
violate the Constitution. Far, very far be it from
me to sanction any act whatsoever of such a ten-
dency. Had I believed, or had gentlemen con-
vinced me by argument, that the bill before you
is a measure of that sort, instead of advocating^
most assuredly I should give it my decided nega-
tive. If such was my impression, neither threats
nor admonitions would have been necessary to
impel me to take such a part. Neither threats
nor admonitions can influence me to take such a
part without conviction of its propriety. But far
from believing that it is a measure of that de-
scription ; and at the same time believing that it
will be for the interest of my country so to do, I
shall vote for the passage of it : and I assure the
gentleman from I)elaware that this vote will not
e given under the impression of Executive in-
fluence; as he has been pleased very plainly to
insinuate that those who favor this bill are acting
under such an influence. I assure him, and I a»-
sure others, who may have thought proper to in-
dulge similar sentiments, that although I highly
revere the eminent virtue, patriotism, and abilities
of the great man who now fills the Executive
Department—
[Here the Speaker said, that remarks of this
kind were not in order.]
Mr. Clopton, after premising that nothing
could be farther from his intention than any wil-
ful transgression of the rules of the House, observ-
ed that the remark was intended solely to vin-
dicate himself against an imputation^ in which
he felt himself included, as the insinuation pointed
generally to the favorers of the bill — that aithouffh
with the utmost deference to the opinion of the
lingled with their remarks many insinuations Speaker, he believed that, situated as he was, the
971
HISTORY OF CONGRESS.
91:
H. OP R.
Judiciary System.
Marcb. IVi
rules of the House would justify him ; he should
conclude (as he was near a conclusion at the time
when his remark was objected to) with saying
that his object was to declare that although the
great endowments of the Executive Magistrate
commanded his highest esteem — although his
opinion at all times merited the utmost respect,
and whenever known were respected by him in
the first degree; yet his decision on this impor-
tant occasion, as well as on all others, had been
pursuant to the dictates of his own judgment, by
which he should be guided in every instance,
where he should have the honor of voting in this
House.
Mr. Varnum said, he had determined to con-
tent himself with giving a silent vote on the
question before the House ; but the observations
made by two of his colleagues, (Mr. Cutler and
Mr. Hastings,) induced him to make some re-
marks, in which he would endeavor to show, that
the sense of the people, in the part of the Union
in which he lived, relative to the constitutionality
of the question, was, at the time of the adoption
of the Federal Constitution, directly the reverse of
that which they had stated. Sir, in the consider-
ation of this subject, we ought to bear in mind
the nature of the Government, and the very small
number of causes cognizable in the Federal Judi-
ciary, when compared with those cognizable in
the State judiciaries, in order, with correctness, to
ascertain the extent to which it is necessary to
carry the one, and at the same time to avoid any
encroachment on the other.
Nothiuj^ would be clearer in my mind than the
Constitutional ri^ht, in Congress, to repeal the
law, which the bill before you contemplates. By
article first section eighth, in the Constitution, Con-
gress is vested with power, ^*to constitute tribu-
nals inferior to the Supreme Court," precisely^ on
the same principle, and under similar expressions,
with the other powers vested by the same section
^^ to establish an uniform rule of naturalization,
uniform laws on the subject of bankruptcies ;" "to
establish post offices and post roads ;" " to raise
and support armies;*' "to provide and maintain a
navy," &c. And it never has been contended,
that Congress have not a Constitutional right to
repeal any law which may have been passed on
any of tnese subjects, excent the judiciaries,
whenever the good of the public may require it.
Ifj then, it is admitted that Congress have a Con-
stitutional right to repeal laws which may have
been passed on these subjects, when the public
good requires it — and to deny it, would be subver-
sive of the best interest of the people — from what
principle of the Constitution is it found to be un-
constitutional to repeal a law relative to the estab-
lishment of inferior courts, when it is conceded
that the power to legislate on that subject is dele-
gated by the Constitution on precisely the same
principle with the other powers which have been
mentioned? The principal reason relied on is,
that the judges are to hold their offices during
good behaviour, that therefore Congress have not
a Constitutional right to repeal a law, which will
in any degree afifect their offices or salaries. But
this objection applies quite as strong agaia^iii:
repeal of a law on the subject of posioffi;e<.Ei
post roads, as it does in the other case, fur C:g-
gress have no more power to remove the r.v
master from office, than they have to rtmora
judge from office. The iudge holds his oScd'/-
ins: good behaviour; the postmaster hol<li :
office during the pleasure of the Presidem of ly
United States; it will also, in like maDDer.arr
against the repeal of a law upon any other sub:<
which creates an office held during the plea/;
of the President, with equal force. SothaLi:>
objection has any weight in the case to vbicii
has been applied, it will go to the subvenin.'
the principle, that Congress have a right torer.
laws on other subjects aside the Jadiciarycm
ing offices held during the pleasure of the Pn^
dent. If the principle is correct, where istacti-
vantage of successive electioDs of the l^i^
ture ? By the third article and first section oJi:!
Constitution, it is provided that the Judicial por;:
of the United States shall be vested iD oseS:
preme Court, and in such inferior coons as ::i
Congress may, from time to time, ordain a::
establish. Which provision, in coDoexlos rii
that which vests Congress with power "to •»j:^
tute tribunals inferior to the Supreme C?.c
clearly evince, that the Constitutional ^^
ment of the inferior courts of the United Sx.^
places their existence exactly commensaratevs
the will of the Legislature, expressed br law.'':?£
time to time, as the circum>tances of the cr^
try, and the public good, may require. T«^
judges are to hold their offices " daring good ^
viour," but it would be absurd in tbeeitresf-
pretend, that this tenure could entitle a mi: •
nold an office which has no Constitutional ts^
ence, and hence, the tenure of office of a ju^?«-
an inferior court of the United States cannoifl
tend beyond the existence of theestablishacai^
which such office is created.
But. should the construction of the Consiita-'
contended for by the opposers of the bill pre^
it is impossible to foresee all the evils which t«'-^
necessarily result. As a demonstration. I will [-■
only one case. Suppose the existence of i^'
with the most powerful nation in Europe. J-
the necessity which in that case there migl>'*
of the establishment of Admiralty Couris'H^
your principal seaport towns, for the trial df^^
which your armed vessels would send in fori-J"'
dication; and at the close of thewar. wfaeo^
further services could be rendered by these ccs"^;
the Constitutional question meets you, and Ur^^
their abolition, because it will affect ihesali-f-|
the judges; and the people must be taxed to?'
these sinecure officers. If such was the tru« '^^
struction of the Constitution, in vain ba^^J^.
people declared in its preamble, that it is ordip^
and established to promote the general well*^
and secure the blessings of liberty to iheffl*'*
and posterity.
In addition to the construction of theCooJf-'
tion. in regard to this question, which seeiD»'
me indisputable from the face ol it; the coDsnj;
tion given it by the people, at the time of its sm
973
HISTORY OF CONGRESS.
974
March, 1802.
Judiciary System,
H. ofR»
tion. or, ia other words, the sense ia which they
viewed it at that time, ought to have great weight
in the decision ; and, perhaps, that sen^e will be
the best ascertained, by a recurrence to the State
constitutions, and the practice of the States under
them. The Constitution of New Hampshire, in
the thirty-seventh article of the bill of rights, very
liappily expresses the sense of the people of that
State, in regard to the independeuce of the Judi-
ciary, in these words :
" In the Government of this State, the three essen-
tial powers thereof, to wit, the Legislative, Executive,
md Judicial, ought to be kept as separate from, and
independent of^ each other, as the nature of a free Gov-
srnment will admit, or as is consistent with that chain
>f connexion that binds the whole fabric of the Consti-
tution in one indissoluble bond of union and amity.'*
The constitution of that Slate vests in the Le-
gislature, forever, full power and authority to erect
ind coDstitute judicatories, and courts of record,
3r other courts, with all the powers incident to a
fudicial department: and with special power to
ibolii>h the courts of common pleas, and courts of
general sessions of the peace, and e;»tablish other
rourts with the same power, as they may, from
ime to time, judge expedient for the due adroin-
stration of law and justice, yet the tenure of the
>ffice of judge in that State, is the same as under
he United States. And, sir, notwithstanding the
mtire dependence on the Legislature for the exist-
ence of the courts* of common pleas, 'I cannot im-
igine that the independence of the judges has
iver been affected by it. There is an honorable
rentleman from that State now on this floor, a
udge of one bf those courts, who. with his asso-
:iates, had the independence, since the adoption of
he Constitution, in their official capacity, to de-
:lare an act of the Legislature unconstitutional.
Phis is a demonstration that the independence of
udges does not, in ail cases, depend on the cer-
ainty of holding their offices, or on receiving the
*raoluments thereof for life.
The constitution of New Hampshire was re-
vised and amended shortly after the adoption of
he Federal Constitution; many parts or it are
Lssimilated to the corresponding parts in the Fed-
eral Constitution. And I cannot doubt, that the
)ower vested in the Legislature, relative to the
uperior courts of the State.
In Massachusetts, the judges both of the su-
preme ju.iicial court, and of the inferior courts,
lold their offices under the same tenure as is by
he Federal Constitution attached to the judges
>f the Supreme Court, and inferior courts of the
Jnited States. By the Constitution of the United
States it is provided, that ''The judg^es, both of
the supreme and inferior courts, shaii hold their
offices during good behaviour; and shall, at sta-
ted times, receive for their services a compensa-
tion which shall not he diminished during their
continuance in office." By the Constitution of
Vlassachusetts, it is provided that '^ All Judicial
officers duly appointed, commissioned, and sworn,
shall hold their offices during good behaviour,
excepting such concerning whom there is differ-
ent provision made in this constitution." This |
exception has relation to justices of the pcBce^
whose commissions are, by the Constitution, lim-
ited to seven years, and not to the judges of the
supreme or inferior courts, except so far as it re-
spects the courts of general sessions of the peace,
formed by the justices within their respective
counties. Therefore, the tenure of office is the
same under both constitutions.
The Legislature is vested with power co-exten-
sive with the Constitution, to establish judica-
tories, and all kinds of judicial courts which the
welfare of the Qommonwealth may require. This
power is couched in such terms as I think will not
admit of a doubt, of its extending, as well to the
abolition of inferior courts, which may be found
not to promote the best interest of the community,
as to the establishment of those which may be
deemed useful and necessary. And further, the
Constitution has vested the Governor, with the
consent of the Council, upon an address of both
Houses of the Legislature, with power to remove
the judges of any of the State courts; and this
may be done without assigning a reason. And in
addition to this Constitutional definition of the
paramount power of the Legislature over the
establishment of Superior Courts, we have, from
time to time, for fourteen years past, at various
periods, been furnished with the most ample testi-
mony of the uniform and invariable sense of the
people of that State on the subject. A short time
after the adoption of the Federal Constitution in
Massachusetts, a committee appointed by the Le-
gislature for revising the code of laws in that
State, (on which committee, if my memory is
correct, were all the judges of the Supreme Judi-
cial Court) made a report to the Legislature in
favor ot the abolition of ail the courts of common
pleas in the State, and for establishing circuit
courts with similar powers; this report was ac-
companied with bills for carrying the principle
into effect; the plan would have discharged from
service about sixty judges. The same system has
be?n brought forward within these seven years, at
every session of two or three succeeding Legisla-
tures, and strongly advocated by able men learned
in the law; in one Legislature, a bill for carrying
the system into effect passed the House of Repre-
sentatives, but failed in the Senate. In a suc-
ceeding Legislature the bill passed in the Senate,
but failed in the House; and it has finally failed.
But, sir, neither the judges of the supreme judi-
cial court, who reported the system, nor the gen-
tlemen, learned in the law, who supported it, could
have entertained an idea that it was unconstitu-
tional; and I have been repeatedly informed, from
indisputable authority, that through all the dif-
ferent discussions of the subject, the idea of its
being unconstitutional was never suggested by
either party : but that the expediency of the mea-
sure was the only ground of debate, and ultimate
decision.
I was not a little astonished to hear my col-
leagues (Mr. Cutler and Mr. Hastings) avow
on this floor, that the people in Massachusetts
never would have adopted the Federal Constitu-
tion, had they not viewed it in the same light with
975
ftlSTORY OF CONGEESS.
9;
H. OF R.
Judiciary System,
*
March, b
those gentlemen who are opposed to the bill under
ooDsideratioDj when they must have been ac-
quainted with the State constitution, and the pro-
ceedings under it, which I have mentioned. It is
in effect charging the people of that State with
the inconsistency of providing by the Constitu-
tion for the establishment of inferior courts, which
cannot be abolished bv the Legislature during the
life of any of the judges; although they might
be found unnecessary, burdensome, and oppressive;
and with vesting in the judges of these courts
power, not only over the establishment under
which they hold their offices, and over the salaries
granted at a time when the establishment might
be thought necessary, but a controlling, independ-
ent power over the Legislature of the Union, and
all the departments in the Government, and were
I to say. over the Constitution itself, I do not
think it would he an exaggeration of the construc-
tion contended for by some gentlemen on this
occasion.
Now, sir, while the constitution of Massachu-
setts vests the Legislature of that State with pow-
ers respecting Judicial establishments under the
State government, exactly similar to the powers
vested in Congress, by the Federal Constitution,
respecting Judicial establishments under the Gen-
eral Government; when the people of that State
have, by the same constitution, so clearly defined
the independence of the judges, and their contin-
uation in office, by the power delegated to the
Governor and Council, upon the address of both
Houses of the Legislature, to remove them from
office, and by the paramount control vested in the
Legislature over the establishments by which
their offices are created ; and when it is so well
known that the judges of the supreme judicial
court, and gentlemen of high legal knowledge and
reputation, have, for many successive y«ars and
under different aspects, been advocating the aboli-
tion of the inferior courts in the State, and the
people of all classes and denominations, constant
and uniform in exhibiting their unanimous acqui-
escence in the constitutionality of the measure;
what foundation is therefor the declaration made
by my colleagues ? Is there the least color of rea-
son for the assertions? But. on the contrary, is
it not fair and candid to conclude, from the state-
ment which has been made, that the people of
Massachusetts entertain the same opinion as to
the constitutionality of the repeal contemplated,
which has been avowed by the friends to the bill
now under consideration on this floor? Is not
this the only conclusion which can result from
the evidence in the case? I presume, sir, that
every impartial inquirer will answer in the affirm-
ative; and, may I be permitted further to observe,
that the people of Massachusetts are true friends
to order and good government, stronfirly attached
to the Federal Constitution ; and whatever may
have been their difference of sentiment in regard
to the administration of the General Government,
this difference has arisen, generally, from honest
motives, ^rounded on the broad basis of general
welfare, suthough accompanied with a diversity
of ideas as to the mode of administration best
calculated to effect this object. Theyanic!^
trious and economical, and wish to hare i;^
honest earnings secured to them bytheGoun-
ment; but they have an innate oppositioo d b;-
less expensive establishments and sinecure cdi:«
In Rhode Islandall the Judicial officers are dn*
annually by the Lefi[islature, yet we do set iter
any complaint of the want of indepeodenct :
the judges.
But, sir, when I recur to the charter under vbc
the people act in the State of CoonecticvL U:
astonished to find the members from thatSu:..
Congress, advocating the necessity of an abscrv:
independence in the judges of the inferior cxr^
of the United States ; not ool^ aa indepeodeic
above the control of the Legislature, but ccit-
pleteiy dictatorial of its measures, io order, t
they tell us, to secure the rights of the people 1
would seem, from the system of jurispradeiKei
that State^at the time of the adoption of tkFr^
eral Constitution, that a radical chaoffehad-^i:^
that time, taken place in the minds 01 the peo^
if they are now truly represented on ihis Ijs
which I am by no means disposed to dispste. h
that State the judges of all their courts. M '>
preme and inferior, are appointed aDouailrkuj
Legislature; and in addition to the compfts&-
trol which the Legislature have a right tceitt-
cise over the judges annually, they havetk)uv3
of calling to an account any court or nugLCia
for any misdemeanor and mal-adminisintia.
and for just cause (the Legislature being the cc[
judges of the justice of the cause^ ma?fiMi>^
place, or remove them. The people of thai S»
have continued this kind of Judiciary fnxo ac
commencement of their government to this i-ct
And, sir, what injuries have arisen to the pe<7
of that State on account of the subordio^u ^
pendence of the Judiciary on the LegiiUtin
Has not justice been as rairly and prompdri^
ministered there as in any other State in *
Union? Has there ever been a compto^s
the judges were deficient in a degree of ind«pe-
ence necessary to support the dignity of ihf>f^
tions, or for the impartial administration of j<^
tice? Is there a State in the Union; naT.arJ^
there a State or nation in the world, wheit -•
people exhibit a greater degree of politeness.-
banity, steady habits, knowledge, and mott-^
than is to be found in Connecticut? Andyci-'
all these excellent qualities have been acqiJ.?fj
under a Judicial system, the principles of^-'^
are profoundly execrated by the members Ik*
that State as well as others, and considered tooi'
inefficacious when applied to that State, and <^t^
other States in the Union under the FedeialGof
ernment. But, sir, is it not natural to concifi^
from the happy effects which the ConneciicBbi-
tem has had in that State, and from theaDJreis
satisfaction which, through the experience of 1.'^
it has afforded the people, that it is at least as g^
as any one which can be devised? Under «^
view of the subject, will any rational man b^
that the people in Connecticut had any »p[«*^
sion that the Federal Constitution relatireioi-'
national Judiciary now contended for at tw bs-
973
HISTORY OF CONGRESS.
974
Marcb, 1802.
Judiciary System.
H. opR.
tion. or, Id other wordsj the sense in which they
viewed it at that time, ought to have great weight
in the decision ; and, perhaps, that sens^e will be
the best ascertained, by a recurrence to the State
constitutions, and the practice of the States under
them. The Constitution of New Hampshire, in
the thirty-seventh article of the bill of rights, very
happil]^ expresses the sense of the people of that
State, in regard to the independence of the Judi-
ciary, in these words :
" In the Government of this State, the three essen-
tial powers thereof, to wit, the Legiaiative, Executive,
and Judicial, ought to be kept as separate from, and
independent of^ each other, aa the nature of a free Grov-
ernment will admit, or as is consistent with that chain
of connexion that binds the whole fabric of the Consti-
tution in one indiaaoluble bond of union and amity."
The constitution of that State vests in the Le-
gislature, forever, full power and authority to erect
and constitute judicatories, and courts of record,
or other courts, with all the powers incident to a
Judicial department: and with special power to
abolish the courts of common pleas, and courts of
general sessions of the peace, and e;>tablish other
courts with the same power, as they may, from
time to time, judge expedient for the due admin-
istration of law and justice, yet the tenure of the
office of judge in thai State, is the same as under
the United States. And, sir, notwithstanding the
entire dependence on the Legislature for the exist-
ence of the courts' of common pleas, 'I cannot im-
agine that the independence of the judges has
ever been affected by it. There is an honorable
gentleman from that State now on this floor, a
judge of one bf those courts, who. with his asso-
ciates, had the independence, since the adoption of
the Constitution, in their official capacity, to de-
clare an act of the Legislature unconstitutional.
This is a demonstration that the independence of
judges does not, in all cases, depend on the cer-
tainty of holding their offices, or on receiving the
emoluments thereof for life.
The constitution of New Hampshire was re-
vised and amended shortly after the adoption of
the Federal Constitution ; many parts or it are
assimilated to the corresponding parts in the Fed-
eral Constitution. And I cannot doubt, that the
power vested in the Legislature, relative to the
superior courts of the State.
In Massachusetts, the judges both of the su-
preme ju.:icial court, and of the inferior courts,
hold their offices under the same tenure as is by
the Federal Constitution attached to the judges
of the Supreme Court, and inferior courts of the
United States. By the Constitution of the United
States it is provided, that ''The judges, both of
' the supreme and inferior courts, shall hold their
' offices during good behaviour ; and shall, at sta-
' ted times, receive for their services a compensa-
' tion which shall not be diminished during their
' coDtinuance in office." Bv the Constitution of
Massachusetts, it is provided that *' All Judicial
' officers duly appointed, commissioned, and sworn,
' shall hold their offices during good behaviour,
' excepting such concerning whom there is differ-
' ent provision made in this coastitution." This
exception has relation to justices of the posce^
whose commissions are, by the Constitution, lim-
ited to seven years, and not to the judges of the
supreme or inferior courts, except so far as it re-
spects the courts of general sessions of the peace,
formed by the justices within their respective
counties. Therefore, the tenure of office is the
same under both constitutions.
The Legislature is vested with power co-exten-
sive with the Constitution, to establish judica-
tories, and all kinds of judicial courts which the
welfare of the Qommonwealth may require. This
power is couched in such terms as I think will not
admit of a doubt, of its extending, as well to the
abolition of inferior courts, which may be found
not to promote the best interest of the community,
as to the establishment of those which may be
deemed useful and necessary. And further, the
Constitution has vested the Governor, with the
consent of the Council, upon an address of both
Houses of the Legislature, with power to remove
the judges of any of the State courts; and this
may be done without assigning a reason. And in
addition to this Constitutional definition of the
paramount power of the Legislature over the
establishment of Superior Courts, we have, from
time to time, for fourteen years past, at various
periods, been furnished with the most ample testi-
mony of the uniform and invariable sense of the
people of that State on the subject. A short time
after the adoption of the Federal Constitution in
Massachusetts, a committee appointed by the Le-
gislature for revising the code of laws in that
State, (on which committee, if my memory is
correct, were all the judges of the Supreme Judi-
cial Court) made a report to the Legislature in
favor ot the abolition of all the courts of common
pleas in the State, and for establishing circuit
courts with similar powers; this report was ac-
companied with bills for carrying the principle
into effect; the plan would have discharged from
service about sixty judges. The same system has
be in brought forward within these seven yeai^, at
every session of two or three succeeding Legisla-
tures, and strongly advocated by able men learned
in the law; in one Legislature, a bill for carrying
the system into effect passed the House of Repre-
sentatives, but failed in the Senate. In a suc-
ceed ini; Legislature the bill passed in the Senate,
but failed in the House; and it has finally failed.
But, sir, neither the judges of the supreme judi-
cial court, who reported the system, nor the gen-
tlemen, learned in the law, who supported it, could
have entertained an idea that it was unconstitu-
tional; and I have been repeatedly informed, from
indisputable authority, that through all the dif-
ferent discussions of the subject, the idea of its
being unconstitutional was never sug^^ested by
either party : but that the expediency of the mea-
sure was the only ground of debate, and ultimate
decision.
I was not a little astonished to hear my col-
leagues (Mr. Cutler and Mr. Hastings) avow
on this floor, that the people in Massachusetts
never would have adopted the Federal Constitu-
tion, had they not viewed it in the same light with
979
HISTORY OF CONGRESS.
Qf
H. OF R.
Judiciary System,
MAFCB.y:
cumstances which produced those failures were
such as never ought to be imputed to any defect
in the system. Over such an extensive territory
as the United States, it is to be expected, that
some failures of this kind will occur, unless in-
deed you do carry those courts to every man's
door, (as some gentlemen have been pleased to
express themselves,) and appoint your judges so
nigh the place of holding the courts, that neither
freshets in rivers, the breaking down of bridges,
or other natural impediments, (which often occur
in the country, and especially in the Southern
States, so as to prevent travelling for many days
together) could operate to prevent the attendance
of the judges; and, even in that case, such fail-
ures could not be entirely guarded against, for
sickness, or the sudden death of the judges, over
which you can have no control, might produce
them. But failures of the kind have not been so
frequent as was to have been expected, from the
nature of the case; nor is it by any means cer-
tain that the system now in operation is better
calculated to prevent them than the old one. Noth-
ing of the kind has ever happened in the State of
Massachusetts. The business in the circuit courts
of that Slate has always been despatched with
mat promptitude, and without delay. unwi>hed
for by the suitors: the business has been so incon-
siderable, that the sessions of the courts have
always been short; and, until the existing system
was brought forward in the House, I never heard
a single person suggest that the old one was inad-
equate to the purposes of its institution.
It has been further urged, on the expediency of
this question, that it was highly necessary and
important to extend the powers and jurisdiction
of the Federal Judiciary, on account of the inad-
equacy of the State courts, to decide on import-
ant questions. This, upon impartial investiga-
tion, will be found to be a frivolous, unfounded
pretext. If it was in my power, I am sure, I have
no inclination to derogate from the high character
of the judges of the courts of the United States;
nor shall I in any respect do it, when I state to
you, as mv opinion, that there never has been a
court of the United States, of which the judges
Possessed moreeminenceof character, ability, law
nowledge, impartiality, correctness of decision,
and moral principle, than has adorned the bench
of the supreme judicial court of Massachusetts,
from its first establishment, under the present State
constitution, to this time. In this opinion, I pre-
sume my colleagues will acquiesce, notwithstand-
ing we are so unfortunate as to disagree on some
other important points ; and, sir, I can conceive of
no reason to doubt of the other States in the
Union being provided with alike respectable judi-
ciaries ; and there never has been an instance in
which a State court has refused or neglected to
decide with their usual promptitude, all actions
which have arisen under the Federal (Government,
and come within their cognizance. Is there any
reason, then, for extending the Federal Judiciary,
on account of any judicial imbecility or inatten-
tion, in the State courts? No. sir, it would be
highly derogatory to our country to admit the
idea. The observations seem calculated soil,:
affect the eminent and important character uu-
State courts, but ] trust, in the wisdom cf :
country, that every attempt of that kiod vl -j:
rendered abortive.
Much has been said on the partof theoppc
tion in regard to the security of life, liberty u,
property, afforded by the act aboot to he repeuL
and that the repeal would lay prostrate ibtr^
bulwark of our prosperity and indepeodfnet::
national Judiciary. Can gentlemen be seriou:
these declarations? What is the fact? Sir,:?
well known, that, by the old judiciary >)^.
about to be revived, there is a Supreme Coiit.;
hold its sessions at the seatof GovernmeDt;>u-
trict court in each State in the Uoion, aod > :
cuit court in each State in the Uoioo, eir
Kentucky and Tennessee; that the datie^ di' C'
circuit courts were performed in the re5]«L»*
States by a Judge of the district court, mtf -
the Slates of*^ Kentucky and Tennessee, the jt!::?
of the district courts performed the dutifsii^
dent to the circuit court without theaid ofaju"
of the Supreme Court. By the existing s^'f-
which is aoout to be repealed, the SupremeCxi
possesses the same powers which were dffeak-
to them by the old system; the districttc^c
each State also retain the same powers uiiitttV.
present sptem, which they were vested wi-
der the former one, and the principal poff:^
the circuit courts in each State are iheflKi
under the old system. Where, then, is the mi;'
difference in the two systems as it relates u a?
administration of justice? Why do geDila'-
exclaim, and so often reiterate the exclaiM-^
the destruction of the Judiciary! thedestr«'^
of the Judiciary! when they know that th«:
before you provides for keeping, in full force. i^
cisely the same Judiciary system under w^-
the people have enjoyed so much prasperitr.*^*
the adoption of the present Government k '•>
last session of Congress, and that the dcnoo:;^
tion of the courts are the same, and the po*^'
similar to those designated in their favorite'''
tem ? It is not my intention .to dilate on tbf k-'
tives of gentlemen ; but I must take the libfi^!^
observe that the declarations which iosinoate^
the bill under consideration joes inanyr»^'|'
the destruction of the Judiciary, or to imp'|;'
due administration of justice, are futile aod -.
founded. The old system, which the friefl'-
the present bill wish to see revived and cont'sc'-
in force, was adopted after much labor and iQ'^
tigation, (in which I have understood that ?*
law character, the late Chief Justice of the u^-
States, took a conspicuous part) as the mo>i r '
pitious mode of administering justice undpr ■;
Federal Government which could be denser ^
have always conceived it much better calcn-*^
to promote general justice, by producing a ?f^^
uniformity of decision in the different parts^"^
Union, than that adopted the last se5sioD ; b«i|]
the judges of the Supreme Court, after ridia:-^
circuits, have an opportunity, on their asjeotJi-
at the seat of Gk)vernment, to compare their r-
sions, and, from time to time, agree oo
niiift.1^
977
HISTORY OF CONGRESS.
978
March, 1802.
Judiciary System,
H. opR.
they adopted it? Or would anything save the
part which the members from that State have
taken in the question before you, have convinced
this House that the people of that State do wish
at this time to see the construction prevail, which
is calculated to tax themselves, their feilow^citi-
zens in the other States, and posterity, with the
support of unnecessary, expensive judiciary sys-
tems, so diametrically opposed to that under which
they live in their own State ; and which is so
universally approved and admired. by them? In
the State of Vermont the constitution provides,
that '' The Legislative, Executive, and Judiciary
' departments, :«hail be separate and distinct, so that
'neither exercise the powers properly belonging
'to the other." But, sir, the judges of all the
adicial courts are chosen annually, or oftener, if
need be, by the Legislature. From this view of
the constitutions in the five Northern or Eastern
States, it appears; that the Legislatures thereof
are all vested with complete control over the es-
tablishments of inferior courts, either with power
to abolish them, and establish others, as they may
jud^e most conducive to the public good, or by a
periodical election of the judges.
From an examination of the constitutions of
the other States in the Union, and the construc-
tion which has been given to the State constitu-
tions in some of the States, it will be found that
the Legislatures in all of them have the same
control over the establishment of inferior courts.
It may be further observed, that the State consti-
tutions of all the States in the Union except six.
to wit: New Hampshire, New York, Virginia,
North Carolina, South Carolina, and Tennessee,
provide for the removal of the judges from office,
either by a periodical election or by the Executive,
upon an address of both Houses of the Legisla-
ture, in some cases requiring the concurrence of
two thirds of each House: and, sir, notwithstand-
ing the State Legislatures have this complete con-
trol over the establishment of inferior courts with-
in their respective States, independent of any
regard to the judges which may hold offices under
them ; the judges in all the States, except where
they are periodically elected, hold their offices
precisely on the same tenure by which the judges
of the inferior courts of the United States hold
theirs.
Mr. Speaker, when the Constitutional estah-
lishment of the State judiciaries is compared
with the national Judiciary, their similaritv im-
partially viewed, and the construction whicn has
uniformly been given to the State systems by their
Legislatures and gentlemen the most eminent for
law knowledge, with the perfect acquiescence of
the body of tne people, is attended to with can-
dor and without party views, do they not exhibit
the most incontestable evidence, that the people
of the United Stales, when they adopted the Fed-
eral Constitution, did it with the impression that
Congress was thereby vested with the power of
repealing any establishment of inferior courts,
which might be made by them, and afterwards
wove useless or burdensome, as well as to estab-
lish sueh as they might consider unnecessary?
Yes, sir, this must be acknowledged by all who
would not charge them with the gross inconsist-
ency of adopting a language in their State con-
stitutions, to which they have given one uniform
construction, and precisely the same language in
the Federal Constitution, with a construction dia-
metrically opposite; which character, however it
may be calculated to promote party views, I ap-
prehend never can be ascribed to the great bomr
of the American people. For what purpose is
this might Constitutional objection set up? Gen-
tlemen who urge it can best answer the question.
But let me entreat them to consider the principles
of the law about to be rejiealed, and compare them
with the bill under consideration, by wnich they
must see that the law which they brought for-
ward, supported and passed the last session of
Congress, embraces the same great principle which
they now contend is a violation of the Constitu-
tion. That law, in express terms, abolished all
the circuit courts established in the United States
under the General Gk)vernment prior to that time,
which were then in existence, and established
other circuit courts with similar power. The bill
under consideration contemplates the abolition of
the circuit courts established by the law of the
last session, and the re-establishment of those
abolished by that law. Where, then, is the differ-
ence in the principles of that law and those in
the bill before youi I can conceive of none as it
relates to their constitutionality. If, therefore,
that law is a Constitutional law, the bill must be
Constitutional also ; and the same gentlemen who
oppose the bill, have decided the principle and
established a precedent, which will have weight
in future procedure in like cases by the passage of
the law. If the law is unconstitutional, those
gentlemen who are now sounding the tocsin of
alarm for the fate of the Constitution, are the very
men who have given it the vital stab; and, even
in that case, there can be nothing unconstitutional
in the bill, for no one will contend that it is un-
constitutional to repeal, abolish, and annul, an
unconstitutional law.
As it relates to the expediency of the repeal, we
should take into consideration the quantum of
business to be transacted in the circuit court, and
the capacity of the judges to perform it without
an interference with their duty as judges of the
Supreme Court and district courts; and if we bear
in mind the small number of objects embraced by
the Federal Judiciary when compared with those
which arise under the State governments, there
is every reason to believe that the state of the
business in the circuit courts will, for a long time
to come, be such, that it can be performed by the
judges of th^ other courts with facility, and with-
out any interference with their other functions.
A recurrence to fact clearly evinces, that this has
been the case from the commencement of the Gov-
ernment up to the time of the passage of the law
which abolished the former system. But, say-
gentlemen, there have been instances in whicn
the circuit courts have failed of transacting the
business before them on account of the non-attend-
ance of the judges. This is true ; but the cir-
983
HISTORY OF CONGRESS.
H. OF R.
Judiciary System.
MABCBh"!
land. It certainly cannot be less so than the stat-
ute made present pursuant thereto. It is indeed
paramount with us to all other human laws that
c^n be made. In whatever capacity I may be
4:alied to act, where the law is to be the rule of
my conduct, if two laws are found to clash with
each other, in such case I cannot be governed by
them both. Of necessity, therefore, 1 must either
not act at all, or reject both^ or else determine
which shall give way. Should the Constitution
and statute be found to contradict each other, the
former, with me. must be preferred. But although
this is a right o/ which every officer of the Uni-
ted States, as such, is constitutionally possessed;
yet, for the due exercise of thls,as also of all other
such rights, he is responsible. He is not vested
with a right to do wrong.
We have heard much of late about the peculiar
and absolute independence of the Judiciary. Al-
though this is a term unknown in the Constitu-
tion as applying particularly to the Judiciary de-
partment 01 the Government, yet it may, and
ought to be admitted to be, in a certain sense, and
in some respects true. The Judiciary are so far
independent of the Legislative and Executive de-
partments of the Government, that these, neither
jointly or separately, have a right to prescribe,
direct, or control its decisions, ft must judge for
itself, otherwise the decisions made in that depart-
ment would not be the decisions of thai, but of
some other department or body of men. The
Constitution, and the laws made pursuant thereto,
are the only rule by which the Judiciary, in their
official capacity, are to regulate their conduct. The
same is the case with other departments. The
Judiciary have no more right to prescribe, direct
or control the acts of the other departments of
the Government, than the other departments of
the Government have to prescribe or direct those
of the Judiciary.
The Judiciary are occasionally dependent on
the President and Senate for their offices. They
are in like manner dependent on the Legislature
for the salaries which are assigned them for their
services; although when once obtained, they can-
not be deprived of either, unless in certain ways
prescribed by the Constitution. The same is the
case with all other offices. Some are independ-
ent in one respect, others in another.
The Judiciary are at all times dependent for
their continuance in office on the judgment which
the Senate and House of Representatives, acting
in separate capacities, may pass on their conduct,
so that whatever may be the case with judges in
other countries, or m the particular States, or
whatever pretensions may be made to the inde-
pendence of the Judiciary of the United States
the fact is, that agreeable to the Constitution our
Judiciary are on the whole, much more depend-
ent on the other departments of the Government,
than the other departments, as such^ are on the
Judiciary. This being the case, it is in vain to
exclaim about the dreadful consequences which
may result from the doctrine for which we con-
tend. For my own part, after all that I have
heard, I am not at all alarmed at the imagin^y
consequences that may result from this doc:: »
I see, at least I think I see, much greater reM
to be alarmed at the consequences resaloDitu
the opposite doctrine. But be the cooseqik:.^
what they may, th^ only remedy mustkcJk
to alter, or to pervert the Coo&titutioo.
If we honestly and sincerely wish to ^w.-
stand in what respects our judges are iDder^
ent. (if indeed they are so in any,) we aifiK-
cur to the Constitution, and that alone, aiik:
first assume an independence for them sacb a*.
would wish, and thence infer such a metai^.'
the Constitution as will support the indepeoo:^
thus assumed, as seems to be thepraciicedfis
description oi men among us. ThisisDocir
than reasoning in a circle, and drawing pre£:.«
from conclusions — ^a species of logic wbiebiL
not understand.
Much has also been said by the opposers dit
bill about checks and balances, and the same;:/
provement is made of these alleged iagnd/a
of our Government which has been made il r;£
independence which has been assumed (x ut
judges of our courts. Unfortunately, bcw^a
for them, these favorite and important teioian:
in the Constitution, equally unknown viu m
independence of the judge. Perhaps iLOiTtK
true that our Government is, in some ixs^i
Government of what may be termed cbec^is^
balances. But what those checks and bsim:^
are, we must learn from the same authentic Kifci
from whence our information is deri?ed lespu-
ing the independence of our judges. It i$ a sf.^-
kind of logic with which we find oursehei i-
sailed. In this case, as in that of the alle^t^^
dependence of judicial courts, such checks u.
balances as suit the taste are first assumed, i:-
from such assumed balances and checbtbec»s>
ing of the Constitution is inferred, to prcn c
assumed fact. In any other case, and to ^^
other men, we should be led almost to s^^
such reasoning as this to be sophistical.
If such provisions as I will name areio^>
nominated checks and balances, wearelupff^
find that the Government of the United Su;ft>^
filled with them. The House of Represesua'-
may pass a bill; the Senate may negative ii^
vice versa^ the Senate and House may ix^ii^^:^
cur in the passing of a bill; the PresidefiiU'
power either to approve, or to pass a f{i^
negative upon the same. The Senate ^M^^
<;an, in their turn, provided two-thirds t<f <^'
agree, destroy the whole effect of such ne?«^;'
The Judiciary may judge of the meaoiBg<^''
law, when made, but thev cannot makeibei*
The judges on the trial of a cause can neither ^'
^uit nor condemn which party they pleas? *
jurors have a power to determine, as to ihf-*
at least. The Executive is vested with !»»«•'•
execute the sentence of tije judge, to noa*^
and by and with the advice and consent u! -
Senate, to appoint and commission to office >^
to perform other duties assigned to him bf i*
but he has not power, as I contend, to create ^^
the law, the sentence, or the office. If ib«2^'
utive or Judiciary, in their official captcitj ^-^
985
HISTORY OF CONGRESS.
986
March, 1802.
Judiciary iSyistem,
H. ofR.
late the ConstitutioD, or the laws made pursuant
thereto, the House of Representatiyes may im-
peach and the Senate may try, condemn, and evict
from office both the President and the judge.
The Senators and the Representatives are origi-
nally dependent on the people for their appoint-
ment to office, and at certain jieriods, are in like
manner dependent for a re-appointment. If these
are to be considered as checks and balances, thev
are abundantly provided in the Constitution. Sucn
checks and balances as these comport with that
construction of the Constitution which we con-
tend for. If there are others, either of a similar
or of a different kind, let them be first pointed
out, and they will be candidlv acknowledged and
respectfully received, at least by me.
But, with the Constitution open before me, and
knowing, as I do, that all civil rule, power, and
authority that exists in the community to which
I belong, are to be brought to the test of that su-
preme, plain, and finished instrument, I can hard-
ly be induced to act the preposterous part of re-
earring to the vague and aoubtful postulates of
men like myself to learn its contents
Thursday, March 4.
Mr. Giles, from the committee appointed, on
the twenty-ninth of January last, to whom was
referred the census of the inhabitants of the Ter-
ritory of the United Slates Northwest of the river
Ohio, with instructions to report whether any, and
what nyasures ought, at this time, to be taken, for
enabling the people of the said Territory to form
a State Government for themselves, to be admit-
ted into the Union upon the same terms with the
original States; and to whom were also referred
petitions from sundry inhabitants of that Territo-
ry to the like efiect, made a report; which was
read, and ordered to lie on the table.
The House proceeded to consider the amend-
ment proposed by the Senate to the bill, entitled
"An act tor the relief of Lyon Lehman:" Where-
upon, it was moved that the further consideration
o\ the said amendment be postponed until the first
Monday in December next ; and, the question be-
ing put thereupon, it passed in the negative ; and
then the main question being taken that the House
do agree to the amendment proposed by the Sen-
ate to said bill, it was resolved in the amrmative.
The House resolved itself into a Committee
00 the bill for revising and amending the acts
concerning naturalization \ and, after some time
spent therein, the Committee rose and reported
progress.
Friday, March 5.
On a motion made and seconded that the House
do come to the following resolution :
Resolved, That a committee be appointed, on the
part of this House, to join such committee as may be
appointed on the part of the Senate, for the purpose of
laying oat, agreeably to law, the unexpended balance
of a sum of five thousand dollars, heretofore appropri-
ated to purchase books and maps for the use of the two
Houses of Congress :
And, the question being taken thereupon, it
was resolved in the affirmative.
Ordered^ That Mr. Nicholson, Mr. Bayard,
and Mr. Randolph, be appointed of the said com-
mittee on the part of this House, pursuant to the
foreffoine resolution.
The House then went into a Committee on the
bill for revising and amending the acts concern-
ing naturalization ; and, after some time spent
therein, the Committee rose and reported several
amendments thereto ; which were severally twice
read, and agreed to by the House.
Ordered^ That the said bill, with the amend-*
ments, be engrossed, and read the third time on
Monday next.
On motion, it was
Resolved, That a committee be appointed to
inquire whether any. and what, provisions ought
to be made, by law, for allowing pensions to per-
sons who do. at this time, labor under disabilities
in consequence of known wounds received in the
actual service of the United States, and who have
not. heretofore been provided for; and that the
committee report by bill, or otherwise.
Ordered. That Mr. Giles, Mr. GaiswoLDjMr.
EnsTis, Mr. Lewis R. Morris, and Mr. Gregg,
be appointed a committee, pursuant to the said
resolution.
The House went into Committee on the bill
for the accommodation of persons concerned in
certain fisheries therein mentioned. The Com-
mittee rose and reported the bill without amend-
ment, and It was ordered to be engrossed and read
the third time on Monday next.
The House went into Committee on the bill for
the rebuilding the light-house on Gurnet point, at
the entrance of Plymouth harbor, for rebuilding
the light-house on the Eastern end of New Castle
Island, for erecting a light-house on Lynde's point
and for other purposes ; and. after some time spent
therein, the Committee roU and reported several
amendments thereto ; which were severally twice
read, and agreed to by the House. The said bill
was then nirther amended ; and, together with
the amendments ordered to be engrossed, and read
the third time on Monday next.
The House resolved itself into a Committee of
the whole House on the report of the Committee
of Claims, of the nineteenth ultimo, on the peti-
tion of Francis Duchouquet ; and after some time
spent therein, the Committee rose and reported a
resolution ; which was twice read, and agreed to
by the House, as follows :
Resolved, That there be paid to Francis Du-
chouquet, out of any moneys in the Treasury not
otherwise appropriated, the sum of two hundred
and ninety-one dollars and eighty-four cents, in
full compensation for moneys by him advanced
to redeem certain American citizens captured by
the Indians.
Ordered, That a bill or bills be brought in, pur-
suant to the said resolution; and that the Com-
mittee of Claims do prepare and bring in the
same.
Mr. J. C. Smith reported, from the Committee
of Claims, on the petition of Jonathan Snowden.
987
HISTORY OF CONGRESS.
ih
B. OF R.
State Balances.
March, bt
The report was, that the prayer of the petitioa
ought DOt to be granted. The reasons urged were,
that the claim was barred by the statute of limi-
tation. •
Mr. Giles moved its reference to a Committee
of the whole House, as the case was a peculiar
one; the petitioner having been wounded, but
whose wound was healed, and did not again break
out until after the statute was passed. Being now
a cripple, he prays a pension.
This gave rise to a lengthy discussion upon the
general principles of doing justice to these unlor-
tunate men, by again opening the pension list.
Mr. EusTis strenuously pressed these cases
generally upon the justice of Congress. The sub-
ject was postponed till Monday.
Mr. Giles afterward moved the appointment of
a committee to consider of the subject, with leave
to report a bill generally.
STATE BALANCES.
Mr. Thomas, from the committee appointed to
inquire into the expediency of extinguishing the
claims of the United States, for certain balances,
which, by the Commissioners appointed to settle
the accounts between the United States and the
individual States, were reported to be due from
several of the States to the United States, made a
report, as follows:
That the following balances were, by the said Com-
missioners, reported to be due from the States herein-
after mentioned, to wit : From the State of New York,
two millions seventy-four thousand eight hundred and
forty-six dollars ; from the State of Pennsylvania, sev-
enty-six thousand seven hundred and nine dollars ;
from the State of Delaware, six hundred and twelve-
thousand four hundred and twenty-eight dollars ; from
the State of Maryland, one hundredandiSfty-one thou-
sand six hundred and forty dollars ; from the State of
Virginia, one hundred thousand eight hundred and
seventy-nine dollars; and from the State of North Car-
olina, five hundred and one thousand and eighty-two
dollars.
That, as none of these States has evinced a disposi-
tion to pay any part of those balances, except the State
of New York, which haa been credited on the books of
the Treasury for two hundred and twenty-two thousand
eight hundred and ten dollars and six cents, for money
expended in erecting fortifications, pursuant to an act
of Congress, passed the 5th of February, 1799; but as
it would be unequal to ask a further payment from that
State exclusively, and as it does not appear that any
measure of coercion can ever be resorted to, a further
continuance of the demands against those States, the
justice and equity of which they do not admit, will, in
the opinion of the committee, answer no useful pur-
pose ; but, on the contrary, is calculated to occasion
perpetual irritation and disquiet, as well to the creditor
as to the debtor States.
The committee are, therefore, of opinion, that it is
expedient to extinguish the claims af the United States
for those balances, and for that purpose report a bill,
which is herewith submitted.
The report was laid on the table. The bill was
twice read, and committed to a Committee of the
whole House on Wednesday next.
NAVY DEPARTMENT.
Mr. Griswold called for the resolQiioacf"
LiEB, for the appointment of a commiuefto:.:
sider the propriety of abolishing the Nary D?,t
ment. He ttiought it very improper to lei 2 **'-
lution of the importance this was, lie on ihei:
so many days, as it certainly excited mnchir.
from the impression that it,was an opeDiogWit"
to the destruction of the Navy altogether.
Mr. Leib said it would be recollected tbatTk
he proposed the resolution, the Hoase wert i-
gaged 00 the Judiciary bill, and coqs^ik
there was not time to call it up till after tkr-
ject was settled. The time since {hai bi i:
allowed of it.
Mr. Giles did not wonder that a state of^s-
existed, when it was recollected that, duriaf 1
late debate, gentlemen had descanted so isc-
on the destruction of these instiiatioos. Mi j
proceeded to vindicate himself from the th":
made by some gentlemen, during thai dsU::!
being opposed to the Navy altogether. H? £•
clared he was not oppo.sed to a Navyaodei:?
tain restrictions. He did, to be sure, roifi^s
building the frigates, and he was notyetsrr'r:
it. The professed object of them was tofe2|L3>:
the Algerines, who were at that time ic^^ts?
our commerce. But what did theydourji:
that service? Nothing. But added to it:' i
pense of building those six frigates, wastle:*-
ment of an enormous sum of money to {mii?:::^
the peace.
Mr. Rutledge hoped the subject woqH i.:
be gone into ; he had heard of the proposiiM:*
ating alarm. The motion might oowbetti*.
up. and made the order for some other earlT-T
which would, in some measure, subside ihe lii'-
Mr. Gregg hoped it would now be take:."
and decided upon, as a saving of time.
It was taken up, when Mr. Leib relievet li-
embarrassment of gentlemen, and theiifei'^
alarm, by withdrawing the resolution.
And the House adjourned.
Monday, March 8.
An engrossed bill for revising and amendifi;"
acts concerning naturalization was read ih«'A*
time: Whereupon, a motion was made, a&i^
question being put. that the fourth section «•-
said bill be re-committed to the consideriii*^^
Committee of the whole House to-day. ii"*-"
solved in the affirmative.
An engrossed bill fof the accommodaiU'S
persons concerned in certain fisheries thereicE^"
tioned was read the third time and passed.
An engrossed bill for rebuilding the ligh^-" **
on Gurnet Point, at the entrance of Pif°
harbor, for rebuilding the light-house at ilif^
ern end of Newcastle Island, for erecting a .-?•
house on Lynde's Point, and for other parp
was read the third time, and passed.
Mr. Giles, from the committee appoinu^
the fourth of January last, to inquire wheihfer*^-
and what, alterations should be made in li^.'-'f
cial establishment of the United Suies. ibc
989
HISTORY OF CONGRESS.
990
March, 1802.
Military Peace Establishment.
H. opR.
report a provision for securing the impartial selec-
tion of juries in the courts of the United States,
to whom was referred, on the fifth of the same
month, a petition of sundry inhabitants of the
State of Pennsylvania, settled on the lands claim-
ed under grants from the State of Connecticut
antecedent to the trial before the court of com-
missioners between the said States of Pennsylva-
nia and Connecticut, made a report thereon ;
which was read, and ordered to be referred to a
Committee of the Whole on Wednesday next.
Resolved, That a committee be appointed to in-
quire into the expediency of providing for the
settlement of the claims to the lands held by set-
tlers and traders at Detroit, and within the juris-
diction and precinct thereof, which they may
have a right to, by virtue of the Treaty of Amity,
Commerce, and Navigation, between His Britan-
nic Majesty and the united States; and that the
said committee report by bill, or otherwise.
Ordered, That Mr. Fearing, Mr. Jackson,
Mr. Tenney, Mr. Elmer, and Mr. Boode, be ap-
pointed a committee, pursuant to the said resolu-
tion.
Mr. Randolph, from the Committee of Ways
and Means, who were instructed to inquire into
the expediency of repealing the law? laying duties
on stills and domestic distilled spirits, on refined
sugar, licenses to retailer?, sales at auction, pleasu-
rable carriages, stamped vellum, parchment, and
paper, and postage on newspapers, made a report -,
which was read, and ordered to be committed to
a Committee of the Whole on Monday next.
Mr. Randolph, from the same committee, pre-
sented a bill to repeal the internal taxes; which
was read twice and committed to the Committee
of the whole House last appointed.
A message from the Senate informed the House
that the Senate have passed the bill, entitled *^An
act fixing the Military Peace Establishment of
the United States," with several amendments; to
which they desire the concurrence of this House.
The Senate have also passed the bill, entitled '^An
act to amend an act, entitled 'An act to lay and
collect a direct tax within the United States,"
with several amendments; to which they desire
the concurrence of this House.
Mr. J.C. Smith, from the Committee of Claims,
presented a bill for the relief of Francis Duchou-
qaet; which was read twice and committed to a
Committee of the Whole to-morrow.
MILITARY PEACE ESTABLISHMENT.
The House proceeded to consider the amend-
ments proposed by the Senate to the bill, entitled
''An act fixing the Military Peace Establishment
of the United States:" Whereupon,
Resolved, That this House doth agree to the
first, second, third, sixth, seventh, eighth, ninth,
tenth, eleventh, twelfth, thirteenth, fourteenth, six-
teenth, and seventeenth amendments proposed by
the Senate to the said bill.
On the question that the House do agree with
the Senate in their fourth amendment to the said
bill, to wit: section fourth, line second, strike out
" twenty-Jive,^^ and insert ^^forty,^^ it passed in the
negative — yeas 24, nays 59, as follows :
Yeas — Willis Alston, Robert Brown, John Camp-
bell, John Condit, Richard Cutts, Williain EustLB, John
Fowler, William B. Giles, Edwin Gray, Andrew Gregg,
Benjamin Huger, Charles Johnson, William Jones,
John Milledge, Samuel L. Mitchill, Lewis R. Morris,
Anthony New, Thomas Newton, jun., Samuel Smith,
Philip Van Cortlandt, Joseph B. Vamum, Killian K.
Van Rensselaer, Benjamin Walker, and Henry Woods.
Nats — John Archer, John Bacon, Theodorus Bai-
ley, Phanuel Bishop, Thomas Boude, William Butler,
Samuel J. Cabell, Thomas Claiborne, Matthew Clay,
John Clopton, Manasseh Cutler, Samuel W. Dana,
John Davenport, Thomas T. Davis, John Dennis,
William Dickson, Lucas Elmendorf, Ebenezer Elmer,
Abiel Foster, Calvin Goddard, Roger Griswold, Seth
Hastings, Joseph Heister, Joseph Hemphill, Archibald
Henderson, William H. Hill, William Hoge, James
Holland, David Holmes, George Jackson, Michael Leib,
Thomas Lowndes, Thomas Moore, Joseph H. Nichol-
son, Joseph Pierce, Nathan Read, John Rutledge, John
Smilie, Israel Smith, John Cotton Smith, John Smith,
of New York, John Smith, of Virginia, Josiah Smith,
Henry Southard, Richard Stanford, John Stanley, Jo-
seph Stanton, jr., John Stewart, Benjamin Tallmadge,
Samuel Tenney, David Thomas, Thomas Tillinghast,
Philip R. Thompson, Abram Trigg, John Trigg, George
B. Upham, Isaac Van Home, Peleg Wadsworth, and
Robert Williams.
Resolved^ That this House doth disagree to the
said amendment.
On the question that the House do agree with
the Senate in their fifth amendment to the said
bill, to wit: section fifth, line sixth, strike out
'^ twenty, ^^ and insert ^^forty,^^ it passed in the neg-
ative.
Resolvedy That this House doth disagree to the
said amendment.
On the question that the House do agree with
the Senate in their fifteenth amendment to the
said bill, to wit:
Section twenty-fourth, strike out all the words after
" discharge" in the third line, and insert as follows, viz :
**■ To each officer, whose term of service in any military
corps of die United States shall not have exceeded three
years, three months' pay ; to all other officers so de-
ranged, one month's pay of their grades respectively,
for each year of past service in the Army of the United
States, or in any regiment or corps, now or formerly in
the service thereof:"
It passed in the negative — yeas 36, nays 35, as
follows:
Yeas — Willis Alston, Thomas Boude, John Camp-
bell, Samuel W. Dana, John Davenport, John Dennis,
William Dickson, Ebenezer Elmer, William Eustis,
Abiel Foster, John Fowler, William B. Giles, Calvin
Goddard, Andrew Gregg, Roger Griswold, William
Barry Grove, Seth Hastings, Archibald Henderson,
William H. Hill, Benjamin Huger, Charles Johnson.
William Jones, John Milledge, Samuel L. Mitchill,
Lewis R. Morris, Nathan Read, John Rutledge, Samuel
Smith, John Stanley, Benjamin Tallmadge, Samuel
Tenney, Abram Trigg, Joseph B. Varnum, Killian K.
Van Rensselaer, Peleg Wadsworth, and Benjamin
Walker.
Nats — ^John Archer, John Bacon, Theodorus Bai-
ley, Phanuel Bishop, Robert Brown, Williain Butler,
Samuel J. Cabell, Thomas Claiborne, Matthew Clay,
John Clopton, John Condit, Thomas T. Davis, John
991
HISTORY OF CONGRESS,
)j:
H. opR.
Daniel W, Coxe.
MabclI^j^
Dawson, Lucas Elmendorf, Edwin Gray, WUiiam Hoge,
James Holland, David Holmes, George Jackson, Mi-
chael Leib, Thomas Moore, Anthony New, Thomas
Newton, jr., John Smilie, Israel Smith John Smith, of
New York, Josiah Smith, Henry Southard, Richard
Stanford, Joseph Stanton, jr., John Stewart, David
Thomas, Thomas Tillinghast, Philip R. Thompson,
and John Trigg.
Resolved, That this House doth disagree to the
said amendment.
T0ES9AY, March 9.
A memorial of sundry merchants of Charleston,
in the State of South Uarolina,and citizens of the
United States, was presented to the House and
read, praying relief in the case of depredations
committed on the vessels and cargoes of the me-
morialists, while in pursuit of their lawful com-
merce, by the privateers of the French Republic,
during the late European war.
Also, a memorial of sundry inhabitants of the
county of N^w London, in the State of Connec-
ticut,and citizens of the United States, to tfaesame
effect.
Ordered^ That, the said memorials be referred
to the committee appointed on the fifth ultimo, to
whom was referred a memorial of sundry citizens
of the United States, and resident merchants in the
city of Baltimore, to the same effect.
A petition of sundry merchants residing in the
city and State of New York, importers of cotton
hides, and other raw materials, for manufacture,
was presented to the House and read, stating the
inconveniences and expense to which the petition-
ers are subjected, by being obliged, under the quar-
antine laws of the said State, to unlade and deposit,
for a limited time in every year, the said articles
on Staten Island ; and praying that they may be
Eermitted to keep the same m the public store-
ouse of the United States erected on the island
aforesaid, free from storage, during the period of
such quarantine.
Ordered, That the said petition be referred to
the committee appointed, on the eighth of January
last, to inquire and report whether any, and what,
alterations are necessary to be made in the "Act
respecting quarantine and health laws."
The House proceeded to consider the amend-
ments proposed by the Senate to the bill, entitled
^'An act to amend an act^ entitled 'An act to lay
and collect a direct tax within the United States:"
Whereupon,
Resolved. That this House doth agree to thefirst«
second, and third amendments.
Resolved, That this House doth disagree to the
fourth amendment of the Senate to the said bill.
The House went into Committee on the bill for
the relief of Francis Duchouquet; which was re-
ported without amendment, and ordered to be en-
grossed, and read the third time to-day.
The House went into Committee of the Whole
on the fourth section of the engrossed bill for revi-
sing and amending the acts concerning naturali**
zation; and. after some time spent therein, the
Committeero^je, and reported an amendment there-
to; which was read, and being further m^U,
at the Clerk's table, was again read. aod. oc :.
question put thereupon, agreed to by lh€ Ha^
Ordered, That the said fourth section as irjti^
ed, together with the bill, be engrossed and hi.
the third time to-morrow.
An engrossed bill, entitled "An actforthe^ie
of Francis Duchouquet," was read the third::
and passed.
The House then went Into a Commiuee -:I v
Whole on the report of the Commiliee of C :
merce and Manufacture, of the tenth ultiia:
the memorials and petitions of sundry m3:dK
turers of gunpowder, of hats, of types, of bai.-
and of stone-ware, within the United States; c
after some time spent therein, the Commiiteef:^'
without coming to any decision.
DANIEL W. COXE.
The House resumed the considentioo cu
amendment, reported on the fourth ultima fr.:
the Committee of the whole House, to the buJ
the relief of Daniel W. Coxe and others, a »
words following, to wit ;
Section first — lines fourth and fifth, stnir j^
the words, " by Daniel W. Coxe."
And on the question that the House do ^^>:'-(
with the Committee of the whole Hou^iit^t"
agreement to the said amendment, it was :t%^^
in the affirmative — yeas 43, nays 36, as folljw-
YiAs — John Bacon, Theodorus BaileT>ft*^^'
William Butler, Samuel J. CabeU, Matthew CUt.-
Condit, Manasseh Cutler, Richard Cutis, Joho Dt";
port, Thomas T. Davia, William DicksoD, Lvcb -
mendorf, Abiel Foster, Calvin Goddard, Roger <>
wold, Joaeph Heistcr, Archibald Hendenoo, ^-^
Hoge, David Holmes, Michael Leib, Ebenexer Mi' - -
Thomas Moore, Joseph Pierce, Nathan HeadJcbs-'
ledge, John Smilie,John C. Smith, JoathSmitkH^
Southard, John Stanley, John Stewart, BenjannJ*
madge, Samuel Tenney, Thomas Tillinghast, P^'j-
Thompson, John Trigg, George B. (Jpham, Piti? '-
Cortlandt, Joseph B. Vamum, Peleg Wadf^w^*^
Lemuel Williams.
Nats— Willis Alaton, John Archer, ThomttB.-r
John Campbell, Samuel W. Dana, John DawsMt^:
Dennis, Ebenezer Elmer, William Euatis, Vfi^ '
Giles, Edwin Ghray, Andrew Gregg, Williffl Br
Grove, Seth Hastings, Joseph Aemphili, WilLia |
Hill, Benjamin Huger, Geoiige Jackson, Chaiki''-
son, William Jones, Thomas Lowndes, John ^^^
Lewis R. Morria, Anthony New, Thomas ^tv^'-
Joseph H. Nicholson, Samuel Smith, Richard Sui^'
Joseph Stanton, jr., David Thomas, Abram Trif? J^
P. Van Neaa, Isaac Van Home, Killian K. Tis^
selaer, Benjamin Walker, and Robert WilDaiss-
And then the question being taken that ib^^
bill, with the amendment, be engrossed, aa^ ^'
the third time, it passed in the negative. A--
the said bill was rejected.
Wednesday, March 10.
A message from the Senate infomied ihcH -^
that the Senate insist on their fourth amen^^-
disagreed to by this House, to the bill «^;''
"An act to amend an act, entitled *Ad ^'
193
HISTORY OF CONGRESS.
994
Iarch, 1802.
Military Peace Establishment,
H. OP R.
ay and collect a direct tax within the United
Uates ;' '' and desire a conference with this House
»Q the subject-matter of the said amendment ; to
vhich conference they have appointed managers
>n their part. The Senate also recede from tbeir
burth and fifth amendments, /disagreed to by this
iouse, and insist on their fifteenth amendment,
Iso disagreed to by this House, to the bill enti-
led 'An act fixing the Military Peace Establish-
nent of the United States." ,
The House proceeded to the farther considera-
ion of the amendment, disagreed to by this House
ind insisted on by the Senate, to the bill entitled
'An act to amend an act, entitled 'An act to lay
md collect a direct tax within the United States p'
Whereupon,
Resolved^ That this House doth recede from
heir disagreement to the said fourth amendment.
Mr. MiTCHiLL, from the Committee appointed
>n the thirty-first of December last, on *' so much
>f the Message of the President of the United
States, of the eighth of the same month, as relates
o Naval preparations, and the establishment of
;ites for Naval purposes," to whom was recom-
iiitted on the ninth ultimo a report on the same
subject, made an amendatory report, in part, there-
ipon ; which was read, and ordered to be com-
nitted to a Committee of the whole House on
Friday next.
An engrossed bill for revising and amending
he acts concerning Naturalization was read the
hird time, and on the question that the same do
)ass, it was resolved in the affirmative — Yeas 59,
lays 27, as follows:
Yeas — Willis Alston, John Archer, John Bacon,
nieodonis Bailey, James A. Bayard, Phanuel Bishop,
rhomas Boude, Robert Brown, William Bntler, 8am-
lel J. Cabell, Thomas Claiborne, Matthew Clay, John
'Jlopton, John Condit, Thomas T. Davis, John Daw-
»on, John Dennis, William Dickson, Lucas Elmendorf,
Sbcnezer Elmer, William Eustis, John Fowler, Wm.
B. Giles, Andrew Gregg, William Barry Grove, Joseph
tieister, William Helms, Joseph Hemphill, William
tioge, James Holland, David Holmes, George Jackson,
William Jones, Michael Leib, John Milledge, Samuel
L. Mitchill, Thomas Moore, Thomas Newton, jun^
foseph H. Nicholson, John Smilie, Israel Smith, John
Smith, of New York, John Smith, of Virginia, Samuel
Smith, Henry Southard, Richard Stanford, Joseph Stan-
ton, jr., John Stewart, David Thomas, Thomas Tilling-
liast, Philip R. Thompson, Abram Trigg, Philip Van
Dortlandt, John P. Van Ness, Joseph B. Varnum, Isaac
Van Home, Robert Williams, and Henry Woods.
Nats — John Campbell, Manasseh Cutler, Samuel
W. Dana, John Davenport, Abiel Foster, Calvin God-
dard, Roger Griswold, Archibald Henderson, William
H. Hill, Benjamin Huger, Thomas Lowndes, Ebenezer
Mattoon, Lewis R. Morris, Thomas Plater, Nathan
Read, John Rutledge, John C. Smith, Josiah Smith,
John Stanley, Benjamin Tallmadge, Samuel Tenney,
George B. Upham, Killian K. Van Rensselaer, Peleg
Wadsworth, Benjamin Walker, and Lemuel Williams.
MOTION FOR ADJOURNMENT.
On a motion made and seconded that the House
do come to the following resolution :
Resolved, That the President of the Senate and
Speaker of the House of Repreaentativei be author-
7th Con.— 32
ized to close the present session, by adjourning their
respective Houses on the second Monday in April next.
A motion was made, and the question being
put, that the consideration of the said motion be
postponed until the fourth Monday in the present
month, it was resolved in the affirmative — yeas 46,
nays 42, as follows :
'i'EAS — Willis Alston, John Archer, John Bacon,
Theodorus Bailey, William Butler, Samuel J. Cabell,
Thos. Claiborne, Matthew Clay, John Clopton, Rich-
ard Cutts, Thomas T. Davis, William Dickson, Lucas
Elmendorf, John Fowler, William B. Giles, William
Helms, William Hoge, James Holland, David Holmes,
Benjamin Huger, Charles Johnson, Samuel L. Mitchill,
Thomas Moore, Thos. Newton, jun., Jos. H. Nicholson,
John Smilie, Israel Smith, John Smith, of New York,
John Smith of Virginia, Josiah Smith, Samuel Smith,
Henry Southard, Richard Stanford, Joseph Stanton, jr.,
John Stewart, David Thomas, Thomas Tillinghast,
Philip R. Thompson, Abram Trigg, John Trigg, Phil-
ip Van Cortlandt, John P. Van Ness, Joseph B. Var-
num, Isaac Van Home, Peleg Wadsworth, and Robert
Williams.
Nats — James A. Bayard, Phanuel Bishop, Thomas
Boude, Robert Brown, John Campbell, John Condit,
Manasseh Cutler, Samuel W. Dana, John Davenport,
John Dawson, John Dennis, Abiel Foster, Calvin God-
dard, Andrew Gregg, Roger Griswold, William Barry
Grove, Seth Hastings, Joseph Heister, Joseph Hemp-
hill, Archibald Henderson, William H. Hill, George
Jackson, William Jones Michael Leib, Thos. Lowndes,
Ebenezer Mattoon, John Milledge, Lewis R. Morris,
Anthony New, Joseph Pierce, Thomas Plater, Nathan
Read, John Rutledge, John Cotton Smith, John Stan-
ley, Benjamin Tallmadge, Samuel Tenney, George B.
Upham, Killian K. Van Rensselaer, Benjamin' Walker^
Lemuel Williams, and Henry Woods.
MILITARY PEACE ESTABLISHMENT.
The House then proceeded to the farther con*
sideration of the fifteenth amendment, disagreed
to by this House, and insisted on by the Senate,
to the bill entitled '* An act fixin§[ the Milita-
ry Peace Establishment of the United States :"
Whereupon,
A motion was made, and the question being
put that the House do recede from their disagree-
ment to said fifteenth amendment of the Senate,
it was resolved in the affirmative — yeas 56. nays
30, as follows :
Yeas — Willis Alston, James A. Bayard, Thomas
Boude, John Campbell, John Clopton, John Condit,
Manasseh Cutler, Richard Cutts, Samuel W. Dana,
John Davenport, John Dawson, John Dennis, William
Dickson, William Eustis, Abiel Foster, William B.
Giles, Calvin Goddard, Andrew Gregg, Roger Gris-
wold, William Barry Grove, Seth Hastings, Joseph
Heister, Joseph Hemphill, Archibald Henderson, Wm.
H. Hill, William Hoge, Benjamin Huger, Charles
Johnson, William Jones, Thomas Lowndes, Ebenezer
Mattoon, John Milledge, Samuel L. Mitchill, Lewis R.
Morris, Anthony New, Joseph Pierce, Thomas Plater,
Nathan Read, John Rutledge, John Cotton Smith, John
Smith, of Virginia, Samuel Smith, John Stanley, Ben-
jamin Tallmadge, Samuel Tenney, Abram Trigg, Geo.
B. Upham, Philip Van Cortlandt, John P. Van Ness,
Joseph B. Varnum, Isaac Van Home, Killian K. Van
Rensselaer, Peleg Wadsworth, Benjamin Walker, Lem-
uel Williams, and Henry Woods.
995
HISTORY. OP CONGRESS.
m
H. OF R.
Wyoming Controversy,
MiicH, ]rl
Nats — ^John Archer, John Bacon, Theodoras Bailey,
Phanuel Bishop, William Butler, Samuel J. Cabell,
Matthew Clay, Thomas T. Davis, Lucas Elmendorf,
William Helms, James Holland, David Holmes, Geo.
Jackson, Michael Leib, Thomas Moore, Thomas New-
ton, jun., Joseph H. Nicholson, John Randolph, jun.,
John Smilie, Israel Smith, John Smith of New York,
Josiah Smith, Henry Southard, Richard Stanford, Jos.
Stanton, jun., John Stewart, David Thomas, Thomas
TUIinghast, John Trigg, and Robert Williams.
Thursday, March 11.
A memorial of the Illinois and Ouabache Land
Companies was presented to the House and read,
praying that Congress will be pleased to devise
some speedy and effectual mode for a final inves-
tigation and decision of the claims of the memo-
rialists, as proprietors of lands purchased from the
Indians prior to the American Revolution, either
in the courts of the United States, or by law
commissioners, specially to be appointed for that
purpose.
Ordered^ That the said memorial be referred to
the committee appointed on the fourth of January
last, to inquire whether any, and what, alteration
should be made in the Judicial Establishment of
the United States, and to report a provision for
securing the impartial selection of juries in the
courts of the United States ; that they do examine
the matter thereof, and report the same, with their
opinion thereupon, to the House.
Mr. Samuel Smith, from the Committee of
Commerce and Manufactures, to whom was re-
committed on the twenty-seventh of January last,
their report on the memorial of Thomas K. Jones,
made an amendatory report thereon ; which was
read and considered : Whereupon,
Resolved, That the Collector for the port of
Boston and Charlestown be, and he hereby is,
authorized to issue to Thomas K. Jones the de-
bentures on ten pipes of wine, imported by said
Jones in the ship Juno, Captain Thomas Dingley,
and exported on the fifteenth of June last, in the
ship Enterprise, Captain Hearsay, for Havana,
on full and satisfactory proof being made to the
said collector of the actual quantity of wine in
the said pipes, at the time of their bein? shipped,
as aforesaid : Provided^ that every other requi-
site shall have been pursued, agreeably to law, for
obtaining the said drawback.
Ordered, That a bill or bills be brought in. pur-
suant to the said resolution; and that the Com-
mittee v.f Commerce and Manufactures do pre-
pare and bring in the same.
Mr. John C. Smith, from the Committee of
Claims, to whom was referred on the thirteenth
of January last the petition of David Mead Ran-
dolph, made a report, which was read and consid-
ered : Whereupon
Resolved, That the Secretary of the Treasury
be, and he hereby is, authorized and directed to
apportion to the several Marshals of Virginia,
Maryland, and Pennsylvania, respectively, who
have been employed or concerned in taking the
late Census, the compensation allowed by the
^* Act providing for the second censas or eBuiif
ration of the inhabitants of the United Siak
according to the service each Marshal may b-
performed.
Ordered, That a bill or bills bebrougiitiipe
suant to the said resolution; and that tbeC.t>
mittee of Claims do prepare and bring u ^
same.
A message from the Senate informed the H:^
that the Senate have appointed a committfe ::
their part, jointly, with the committee appoisi^
on the fifth instant, on the part of this Hoa<e. "
the purpose of laying out, agreeably to lav t:-
unexpended balance of a sum of fivethoosaBdc*
lars, heretofore appropriated to purchase boobis.
maps for the use of the two Houses of Cod^'
On a motion made and seconded that the Ho
do come to the following^ resolution:
'Reaohedf That the sum of ddlars ooghti "t
appropriated to the erection and repair of picisiat
river Delaware :
Ordered, That the said motion be referrfi:
the Committee of Commerce and Manafaei-i^
Mr. John Cotton Smith, from theCoaiiLXrt
of Claims, presented a bill for the relief of f^f.:-:
districts therein mentioned; which was rea^tncf
and ordered to be engrossed, and read is .li'-
time to-morrow.
Mr. Griswolo laid the following mci^ ^
substance, on the table:
Resolved, That it is proper to make proTisbn^l:*
towards indemnifying the merchants of the U^*
States for French spoliations, so far as diimifo'-
same have been abandoned by the conveDtioB *'
France.
Ordered to lie on the table.
WYOMING CONTROVERSY.
The House went into a Committee of the W:-
on the report of the committee to whom W'
ferred the petition of sundrv inhabitaot^ cf :
Slate of Pennsylvania, settled on thelandscii^
ed under grants from the State of CoDDect-
antecedent to the trial before the court of c:-
missioners between the State of PenDsylraBai:
Connecticut.
The report of the committee embraces aar
torical view of the Wyoming controrers?, r?c*
the act of Pennsylvania, for preventing iniriB''.
upon land in Northampton, NorthumberlaniJ'
Luzerne counties. The report then proc«i :
state :
" The petitioners complain of these acts MoncM*-
tional, and pray that provision may be mwlebf^'^
transferring the proceedings under these hv« ^ '
State Courts of Pennsylvania to the Couit8ofib<fj^
ted States ; and that further provision maj be b^J.
law, that in the trial of any prosecution in Tntue:'^
said acts the defendant may have a Tenire ha^^ ^^
mon juries from some State, other than P^P^^J^.
Your committee conceive, that the right o^J°PJ~'^
was finally settled by the decree of Trenton, of tw'
December, 1783, and that by the dcdsionoftbf^'
court for the district of Pennsylvania in April 1^ -
whole question of the right of soil waa foUj J*"^
and decided by the court, in a case the most v^
997
HISTORY OF CONGRESS.
998
March. 1802.
State Balances.
H. OF R.
for the defendant ; which decudon not having been re-
vised and reversed, shoald also be considered as final
and conclusive.
Your committee therefore, upon the whole circum-
stances of the case, are of opinion, that the measures
contemplated by the petitioners would tend very much
to increase the embarrasments already experienced by
the State of Pennsylvania, in extending and enforcing its
lawful jurisdiction over the lands in question, and that
it would be highly inexpedient on the part of the Uni-
ted States to interfere with the regulations of the States
in that respect, or to countenance, by any means what-
ever, any circumstances of insubordination to the State
authority.
Your committee are therefore of opinion, that the
prayer of the petitioners ought not to be granted."
After a debate, the Comnaittee rose and reported
their agreement to the report.
A motion was made and lost to recommit the
report to a select committee.
It was then moved to postpone the further con-
sideration of the report till the last day of Novem-
ber next. Not carried.
The question was then taken on concurring
with the Committee of the Whole in their report,
by yeas and nays, and agreed to — yeas 60, nays
17, as follows :
Yeas — Willis Alston, John Archer, Theodoras
Bailey, James A. Bayard, Thomas Boude, Robert
Brown, William Butler, Samuel J. Cabell, John
Campbell, Matthew Clay, John Clopton, John Condit,
Manasseh Cutler, Richard Cutts, John Dennis, Wil-
liam Dickson, Lucas Elmendorf, Ebenezer Elmer,
William Eustis, Andrew Gregg, Seth Hastings,
Joseph Heistcr, William Helms, Joseph Hemphill,
William H. Hill, James Holland, David Holmes, Ben-
jamin Huger, George Jackson, Charles Johnson, Wil-
liam Jones, Michael Leib, John Milledge, Samuel L.
Mitchill, Thomas Moore, Lewis R. Morris, Thomas
Newton, jr., Joseph H. Nicholson, Thomas Plater, John
Randolph, jr., John Smilie, Israel Smith, John Smith,
of New York, John Smith, of Virginia, Samuel Smith,
Henry Southard, Richard Stanford, John Stanley, Jo-
seph Stanton, jr., John Stewart, Samuel Tenney, Philip
R. Thompson, Abram Trigg, John Trigg, Philip Van
Cortlandt, John P. Van Ness, Joseph B. Varnum, Isaac
Van Home, Benjamin Walker, and Henry Woods.
Ykas — John Bacon, Phanuel Bishop, Thomas Clai-
borne, Samuel W. Dana, John Davenport, Calvin God-
dard, Roger Griswold, Archibald Henderson, John
Pierce, Nathan Read, John Rutledge, John Cotton Smith,
Benjamin Tallmadge, Thomas Tillinghast, Killian
K. Van Rensselaer, Peleg Wadsworth, and Lemuel
Williams.
And so the petition was rejected.
Friday, March 12.
An engrossed bill for the relief of the marshals
of certain districts therein mentioned was read
the third time and passed.
The House being informed that Narbworthy
Hunter, the Delegate from the Mississippi Ter-
ritory, in this House, died last evening:
On motion, it was
Resolved, That a committee be appointed to
take order for superintending the funeral of Nars-
woRTHY HuNTBR, late a Delegate from the Missis-
sippi Territory ; and that this House will attend
the same.
Resolved, That the members testify their re-
spect for the memory of the said Narbworthy
Hunter, by weariDg a crape on the left arm, for
one month.
Resolved, "f hat the Speaker of this House ad-
dress a letter to the Governor of the Mississippi
Territory, to inform him of the death of Narb-
worthy Hunter, the Delegate from the said
Territory in this House, in order that measures
may be taken to supply the vacancy occasioned
therebv.
Ordered^ That Mr. Leib, Mr. Davis. Mr. Hol-
land, Mr. Rutledoe, and Mr. Lewis R. Morris,
be appointed a committee, pursuant to the first
resolution.
Mr. Samuel Smith, from the Committee of
Commerce and Manufactures, presented a bill for
the relief of Thomas K. Jones; which was readi
twice and committed to a Committee of the whole
House to-morrow.
Mr. Jackson, from the committee to whom was
re-committed, on the fifth ultimo, the bill for the
relief of Isaac Zane^ reported an amendatory bill;
which was read twice and committed to a Com-
mittee of the whole House on Monday next.
Mr. Randolph, from the Committee of Ways
and Means, presented a hill making an appropria-
tion for defraying the expenses wEich may arise
from carrying into effect the Convention made be-
tween the United States and the French Repub-
lic; which was read twice and committed to a
Committee of the whole House on Monday next.
Ordered, That a message be sent to the Senate
to inform them that the funeral of Narbworthy
Hunter, late a Delegate from the Mississippi Ter-
ritory, who died last evening, will be attended to-
morrow, at twelve o'clock; and that the Clerk of
this House do go with the said messaire.
STATE BALANCES.
The House resolved itself into a Committee of
the Whole on the bill to extinguish the claims of
the United States for balances reported against
certain States by Commissioners appointed to
settle the accounts between the United states and
the individual States.
Mr. Thomas. — Mr. Chairman, I rise, with a
great deal of diffidence, to deliver my sentiments
on this floor, as I have no^ been accustomed to
public speaking ; however, a sense of my duty as
a Representative of the United States, as well as
the immediate Representative from the State of
New York, impels me, on this occasion, to ask the
indulgence of the Committee while I make a few
remarks on the subject of the bill now under con-
sideration.
Sir, a number of the debtor States, and partic-
ularly the one which I have the honor to repre-
sent, have always believed that they were prodi-
giously injured in the settlement that was made;
they have always believed that there was some-
thing radically wrong, grossly unequal, in the ac-
counts exhibited by the inuividual States, and
allowed by the Board of Commissioners; in this
belief, they have frequently called for information
999
HISTORY OF CONGRESS.
100(1
H. OP R.
State Balances,
March, IS'l
on the subject, for a re-examiDation of that settle-
ment, and have as often been denied it.
Much might be said to prove that the very eco-
nomical system adopted aod adhered to by the
Slate of New York in limiting the prices of pro-
duce, and in liquidating the accounts of her citi-
zens for supplies furnished during the Revolu-
tionary war, operated particularly prejudicial to
that State in the settlement. I shall, however,
waive any remarks on this for the present, and
confine myself principally to the rule which was
adopted for apportioning the expenses of the war
among the several States. Sir, the Committee
will recollect that by an act of Congress passed in
the year 1789, the enumeration of inhabitants
made in the year 1791 was adopted as the rule
for apportioning this debt among the thirteen
States.
I shall in the first place examine the original
^contract entered into by these States, and under
which these expenses were incurred, and then en-
deavor to show the effect which, adopting an enu-
meration made seven or eight years after the close
of the war, had upon the several States different
from what the same rule would have produced
had the apportionment been made according to
the numbers in each State at that period, say 1784.
In the year 1778. the people of these States en-
tered into a Confederation for various purposes,
one of which was, to prosecute the war against
Great Britain. In the eighth article of this com-
pact it was expressly agreed that —
** AH charges of the war, and all other expenses that
should be incurred for the common defence and gene-
ral welfare, and allowed by the United States in Con-
gress assembled, should be defrayed out of a common
treasury, which should be supplied by the several States
in proportion to the value of all lands within each State
granted to or surveyed for any person as such lands
and the building and improvements thereon should be
estimated, according to such mode as the United States
in Congress assembled, should from time to time direct
and appoint."
This, Mr. Chairman, was the agreement under
which this debt was incurred ; and here allow me
to ask the honorable gentleman from Massachu-
setts (Mr. Bacon) whether he was correct when
he told us the other day that this settlement had
been made agreeably to the articles of Confedera-
tion; and, further, whether, agreeably to that
compact, the State which he represents would
have been allowed for her losses in the Penobscot
expedition, which has enabled her to become a
creditor State of upwards of one million two hun-
dred thousand dollars, and more than one-third of
the whole amount of the balances. Sir, had the
original agreement under which these expenses
were incurred been adhered to in the settlement,
no one ought now to complain ; but, in order to
comply with it, the expenses of the war ought to
have been apportioned among the several States
according to the value of the lands and buildings
at the time these expenses were incurred, and I
do contend that the period immediately after the
termination of the war was the only proper one
for carrying into effect this stipulation. I am per-
suaded that no gentleman on this floor will iki
that the existing circumstances of the seren.
States at that period was the most proper to c^
termine the just proportion which each Sui
ought to pay of these expenses, by whaiererdr
might be adopted. Admitting, theo, that C::-
gress had the power, and it was judged expfJ. :•
to deviate from the original contract, and iL-
as the rule of apportionment the enumeration c:\:-
habitants as a more practicable one, ought itr.;
to have had reference to the numbers in each S:«:
at the close of the war ? Most unquestioaai.
Mr. Chairman, no gentleman will deny ibis.iL
that the year 1784 was the proper time. ItLi*
however, be said that no enumeration was rnadt
till the year 1791, seven years afterwards. Igra:'
it. But will this alter the justness of m\ p^
tion ? Not at all. It must be obvious in tbea-
of every gentleman who has reflected on these-
ject, that the relative numbers in each State u:
changed materially between the year 17S4 vt^i
this settlement ought to have been made,aLii::<
J rear 1791, when it was made. In orderioec!-
ish this fact, I have adopted this method; I u':
admitted what I believe every gentlemm »^i
hears me will, without hesitation: that tbtrrUi
been no material variation in the increase cfr>t
ulation in the several States since the yeitl^V.
that the increase was nearly, if not correctiv'
the same ratio between the years 1784 acd '''■
with the increase between the years 179U'.
1801 ; that is, that the relative increase of p;.
lation in the several States was nearly, if net :'
rectly, in the same proportion for the sercn yer
previous to the year 1791 that it was foriM'--
years subsequent to that period.
This I have established as my data,byTirL:-
have ascertained the numbers in eachStatfitt-
year 1784, and having apportioned thewhdee<>
amon^ the several States, according to tbet^s-
meration, I find the following to be the resuh:
That the State of Massachusetts, instead cf*-
ing a creditor of $1,248,801, she would hare bra
a creditor for only $863,267 ; that the Siaif j
Connecticut, instead of being a creditor Sutf:
$619,121, she would have been a debtor State : '
$235,419; that the Stale of Rhode Island.icsirt
of being a creditor Stale for $299,611, she v^i-
have been a debtor State for $13^12; that t:^
State of New Jersey, instead of being a cre^V/
for 849,030, she would have been a debtor Sr
for 8300.201 ; that the State of New Yrrt -•
stead of being a debtor State for $2.074.ai^ >>
would have been a creditor State for $965.^31 «'«
This, Mr. Chairman, would have been the '*
nation of those States had the apportionment i«|
made according to the numbers in each Sa:^ -
the year 1784. As for the accuracy of thisJj**
ment I think I can with safety pledge niys«'-
is, however, open for any gentleman who f-^^
give himself the trouble to examine it for hiD'^**
The principles on which it has been made carsa
be disputed, as it respects the State of New V^i
if anything, it does not make enough inherlsj*
fur it is evident that the emigration into that*.*
from the neighboring States was greater fof '■
1001
HISTORY OF CONGRESS.
1002
March, 1802.
State Balances,
H. OF R.
first seven years after the close of the war than it
has been for any subsequent seven years.
Will, then. Mr. Chairman, any gentleman hes-
itate a moment to pronounce the rule of appor-
tionmeDt which was adopted unjust, unequal, and
erroneous? Will any gentleman say, sir, that
the rule of apportionment was a just one, or as
just as the nature of the case would admit of,
which brought the State of New York in debt
upwards of two millions — two-thirds of the whole
amount of the balances — when, on the principles
of righteousness, on the principles of legal con-
tract, or any other principles, but an unauthorized
act of Congress, that State would have been a cre-
ditor State for nearly a million?
Mr. Chairman, I admit, as the settlement has
been made, and the creditor States have received
their balances, that it would be improper now to
take up this suhject de novo^ and endeavor to com-
pel those States to refund what they have receiv-
ed more than they were entitled to ; this is not
expected — it is not asked ; all that is asked of you
is, thai you render such justice to those injured
States as the present situation of this transaction
will admit of; this is all that is contemplated in
the bill now before us.
Sir, as to the present situation of the State of
New York with respect to this subject, she has
not acknowledged the justice of this claim, as was
stated by some gentlemen when this question was
under consideration the other day ; she has uni-
formly denied it. It is true she did comply with
the act of Congress passed in February, 1799, and
has expended and been credited on the books of
your Treasury for $223,810 under that act ; she
did this, not from a conviction of the justice of
the claim, but from motives which have always
actuated her conduct, as well during the Revolu-
tionary war as since, to do everythin^in her pow-
er for the general welfare of the nation, when-
ever its exiofencies required it, and also from an
expectation that the other States called debtor
States would do the same, and thereby get rid of
an evil which she considers as bavins a tendency
to alienate the good will and cordial affection so
necessary to be cherished between these States —
a cause, sir, which has and will, while it is suffer-
ed to exist, occasion perpetual irritation and dis-
quiet, as well to the creditor as to the debtor States,
and which may at some future period produce
consequences more fatal.
I say, sir, these were her motives in agreeing to
that measure ; and did she not evince a magnani-
mous spirit by doing it ? A willingness to suffer
an additional injury herself, rather than not re-
move a cause which might put in jeopardy the
peace and harmony of these United States ? But,
Mr. Chairman, as it can answer no useful purpose
to have the remainder of the money expended in
the manner directed by the act — and this I am war-
ranted in statins; to the Committee, not only as
my own opinion, but as the opinion of the gentle-
man who was employed under Government as an
agent or commissioner to superintend the expendi-
ture already made — as nootner State has evinced
^ disposition to extinguish these balances by pay-
ing any part of them, or by complying with any
of the terms heretofore offered by Congress ; and
as it must be admitted on all hands that Congress
have no power to effect it by eviction, I ask gen-
tlemen it it would be just or reasonable that the
State of New York, who has been injured more
in the settlement than any other State in the
Union ; who has already paid upwards of $230,000
towards these balances, and who is the only State
that has, or in ail probability ever will, pay*a cent
towards them — I say, I ask gentlemen of the
Committee whether it would oe just that that
State should now be driven to one of two alterna-
tives; either to draw near a million of dollars
from her citizens and expend it where it will an-
swer no useful purpose to the State nor to the
nation, or to withhold any further appropriations,
and thereby incur the imputation of having vio-
lated her faith ? I call upon gentlemen seriously
to consider whether it would not be prodigiously
unjust to hold that State in this predicament;'
whether it would not be adding injury to injustice
to do it?
Mr. Chairman, I do flatter myself that the re-
presentatives of this nation, convened here to le-
gislate on fair and equitable principles, will not
suffer a new wound to be inflicted on that State,
but that they will unite with one accord in pass-
ing the bill now before us, and thereby not only
heal the one already made on that, as well as
several of her sister States, but remove a rock
which may endanger our Federal ship.
The bill was supported by Messrs. Randolph,
Van Rensselaer, Hill, Van Ness, Gregg,
Bayard, Smilie, Macon, S. Smith, Claiborne,
and Holland — and opposed by Messrs. Elmer,
Bacon, Eustis, Hastings, and Butler.
The question was then taken on the Committee
rising, and reporting the bill without amendment,
and carried — yeas 47, nays 33.
A motion was then made that the bill be en-
grossed for a third reading on Tuesday, and car-
ried— yeas 47, nays 35.
A motion was then made by Mr. Leib to re-
commit the report of the select committeeon which
the above bill was founded, in order to correct an
erroneous statement in relation to Pennsylvania.
Saturday, March 13.
The House met, but no quorum being present,
adjourned till Monday.
Monday, March 15.
Mr. Gregg, from the committee appointed, on
the seventh of January last, ''to inquire whether
any, and, if. any, what, addition it may be neces-
sary to maKe to the military stores of the United
States," made a report ; which was read, and or*
dered to lie on the table.
On motion, it was
Resolved^ Th^it the Committee of Claims be in-
structed to inquire whether any further compen-
sation, than is already providea bv law, ought to
be made to the Commissioners ot the direct tax,
1003
HISTORY OF CONGRESS.
lOiii
H. OP R.
French Spoliations,
Mabcb. li
or any of them ', and that they report by bill; or
otherwise.
Mr. Thomas, from the committee to whom was
re-committed, on the iwefth ins(ant, a report of
the same committee, appointed "to inquire into
the expediency of extinguishing the claims of the
United States for certam balances, which by the
Commissioners appointed to settle the accounts
between the United States and the individual
States, were reported to be due from several of the
States to the United States," made a report there-
on; which was read, and ordered to tie on the
table.
Mr. Randolph called for the order of the day
on the bill for repealing the internal taxes.
FRENCH SPOLIATIONS.
Mr. Griswold said, that he hoped the resolu-
tion which he had laid on the table for indemni-
fying for French spoliations would be first taken
up. It was important, before a decision was made
on the repeal of the internal taxes, that the extent
of indemnities made by Government should be
known. He therefore moved a postponement of
the bill on internal taxes till to-morrow, that, in
the meantime, his motion might be acted upon.
He concluded by desiring the yeas and nays.
The motion of Mr. Griswold is as follows:
<' Resolved, That it in proper to make provision by
law towards indemnifying the merchants of the United
States for losses sustained by them from French spolia-
tionsi the claims for which losses have been renounced
by the final ratification of the Convention with France,
as published bv proclamation of the President of the
United States.*^
Mr. Lowndes observed, that it was nearly two
months since the Committee was raised, to whom
had been committed the petitions of merchants
praying indemnities; notwithstanding this length
of time, the Committee had not yet met. He
hoped this resolution would induce tne Committee
to meet.
Mr. S. Smith said, that he had presented the
first petition on the subject of French spoliations,
and that it had been immediately referred to a se-
lect committee, who, though they had made pro-
gress in the business committed to them, had not
considered it fair to decide until all the petitions
expected on the subject had been received. One
indeed had been presented only this morning.
Mr. S. asked if this mode was not perfectly just
and fair? For himself, on this subject, he was
precluded from voting, as he was deeply interested
m the decision of the House. He mentioned this
circumstance that the reason might be understood
why particular gentlemen from different parts of
the Union did not vote on this question in its
several stages.
Mr. Lowndes said he did not consider the right of
deciding the principle delegated to the select com-
mittee. That must be decided'in the House. It
was the duty of the committee barely to make
arrangements to protect the House from imposi-
tion on the score of facts. If it shall be deter-
mined by the Gbvernment. that it is improper to
make compensation— though he thought such a
decision scarcely possible — the select commiis
may be discharged. If, on the other hand. .u>
thought proper to compensate, the committee £r
go into tne investigation of details.
The order of the day is called for on repei;!:::
the internal taxe.s. But ought not the Hoib; :
understand the amount with which the (k\m-
ment will stand charged on these iDdemi!J&
before those taxes are repealed? Mr. Lsaik
was of opinion the claims could not be Kjtcjti
They were too just to be disregarded. Iirt.
the duty of the Government to protect its ciu^a
from the depredations of an enemy. GoTeromr^i
for a certain national good, had thought proper
abandon the claims of its citizens on the Frecrt
Governipent. Surely no man would sar. i^;
Government possessed the right to seize ihepic:-
erty of a certain description of its ciiizeD%s:i
appropriate it to general purposes. Herppeitfi
that these claims must be paid by the Got!!:
ment. Was it not then proper to determifietlifii
extent before the internal taxes were takeo oeI
Mr. John C. Smith submitted it tothecan:?
of the gentleman from Virginia to wairehiitc/
tion until that made by the gentleman frosiC.^
necticut, respecting French spoliations, sht3>i»
referred to a Committee of the Whole.
Mr. Mitchill felt it an obli^atioD, tkui^
case of those whom he had the honor to itp
sent, and that of the other merchants io liie lif-
ted States, should be taken up and recein ir%
this House the most deliberate andseriosscjs-
si deration. He had before submitted totheHc4»
his ideas on the proper course to be pursued, wr'
it was not necessary for him to repeal. H:
would, however, observe, that the resoluiioa kj
made was so broad as entirely to defeat iti^*
ject. The first reference of this busioesswi't:
a select co;nmittee instructed toexamiDetlii^'
papers and documents in relation toit^vin^^
instruction to report their opinion to theHoc^
on receiving which the House might beib.e-
come to a decision. On the other hand, (be pr^
sent proposition goes to commit the House oau^
whole extent of the subject without any eiat-
nation whatever.
Mr. M. said, he would suggest a fewreifiJ'
which satisfied his mind that a decision she-
not be too rapidly pressed. The vessels takes J*
the French admitted of various classificaiu'^
One class consisted of those that were captor-
before the dissolution of our treaty with ¥n^
another class of those which were capturd »i -
that event; another class of those that were ca^
tured by picaroons without commissions: ^
another class, where captures were madconi-*
count of contraband goods. All these cla^*''|^
volved distinct considerations; and when the. '^•
ject was presented to the House io a fors^*
complicated, was it proper precipitately to <'^'^;
a principle that might bind the Goveromei::
make indemnity for all cases whatever? ^
Mr. M. said he had no doubt but thai j«-
property of the citizens of the United Siji^^^
came fairly under the character of spoliaiefl?;''
erty, would be considered as a fit subjeci ei i
:?"
1005
HISTORY OF CONGRESS.
1006
March, 1802.
Pt'ench Spoliations,
H. OP R.
deiDDity. He was one of those who thought that
in such cases payment ought to be made. He
considered the merchants as a very importaut
class of citizens, and that their interests ought to
be protected. This he thought the more neces-
sary from the consideration of the bill on the
table, which, when passed, will render the Gov-
ernment very dependent on mercantile credit.
Mr. M. was otopinion that the best way of ac-
complishing the object of the merchants was not
to precipitate the subject. On the other hand, he
was of opinion that the best chance of success
would arise from an examination of the various
classes of spoliations, from separating them from
each other, thereby enabling the House to act
understandingly upon them. The resolution of
the gentleman from Connecticut was so vague as
not to be susceptible of any distinct meaning. He
hoped, therefore, the subject would be suffered to
undergo a full and deliberate investigation in the
select committee, which he, as a member of that
committee, assured the House was progressing as
fast as a sense of justice and a regard to our mer-
chants require.
Mr. Dana. — The object of the present motion
is to take up the resolution of my colleague, and
to take order upon it — not to decide definitely
upon it. This being the true question, I hope the
gentleman from New York will not think it im-
proper in me to sav that many of his remarks do
not apply to it. As the question is not whether
we shall immediately decide the point, but only
place it in a train lor decision, it must be dis-
cussed either in a Committee of the Whole, or in
a select committee; and we ask the House now
to decide which, that it may be progressing to-
wards a final decision.
The resolution states a general principle. If it
is the fixed' determination of the majority, with-
out an inquiry, not to grant any relief whatever,
there is an end of the business. But \( you agree
to grant any relief, the resolution ought to be
adopted. The principle is then established of in-
demnifying ; after which you my discriminate.
The principle on which the resolution is founded
is not that Government has declined to insist upon
the claims of its citizens against the French; but
that it has undertaken to abandon their claims,
so that no citizen can now come forward with
his claim either against the French Government
or any citizen of France. For this is the con-
struction of the treaty as finally ratified by the
Government. It is a complete surrender and re-
nunciation of all demands. Amon^r the first
claims of our citizens are some of private right,
which, were it not for the treaty, could be re-
covered in the courts of France, but which the
treaty bars. This constitutes a class *of claims
which the Government cannot refuse to indem-
nify. There are other descriptions of claims
which might require discrimination ; in some of
which the degree of compensation should be va-
ried, and others in which there should be no com-
pensation whatever. I think, therefore, it is proper
for the Government to say the business shall be
attended to ; at some future time an inquiry may
be made into the nature of the various claims,
This is all we ask.
Mr. Griswold said that the gentleman from
New York had misapprehended the order of pro-
ceeding in that House. He supposes the present
resolution so vaguely worded as to be improper
to be passed. But, if taken up, that very gentle-
man may offer any amendment he pleases. I do,
however, apprehend that it is so worded as to
bring the subject fairly before the House. It is
worded even with caution. Its sole object is to
bring the princijile of indemnity before the House,
unfettered, that its decision might not be embar-
rassed by any details ; supposing there would be
an indisposition in the House to pledge the nation
to an unlimited extent, the words used are, ^^ to-
wards indemnifying." Gentlemen, therefore, who
are disposed to do anything, can feel no objectioik
to a resolution so qualified. Other parts of the
resolution are worded with equal caution, so as
to extend only to cases where losses are renounced
by treaty. Are gentlemen unwilling to indem-
nify for such losses ?
This is a principle proper for decision in Com-
mittee of the Whole. Why take it to a select
committee? It involves no details; it requires the
elucidation of no facts. We know the losses of
our merchants, and we know the treaty has re-
nounced them. The House is, therefore, prepared
to say whether it will or will not indemnify.
When the principle is decided, it may be sent to
a select committee to settle the details. I hope
that it will be taken up, and an early day fixed
for consideration.
The gentleman says the committee are pro-
gressing. It may be so. Though I observe*the
gentleman from South Carolina says the commit-
tee has not yet met. How progressing ? With-
out meeting? I do not undert tand this new mode,
though I will not say that it is not a very correct
mode. The gentlemen further says the commit-
tee have not progressed because they wished to
have first all the petitions before them ; but the
principle to be settled is as much involved in one
petition as in all.
Mr. Gregg said he should not have risen but
for the remarks of the gentleman from South
Carolina, and after him those of the gentleman
from Connecticut, who had stated that the com-
mittee had not met. Being a member of the com^
mittee he would inform those gentlemen that the
committee had met ; that they had perused a num-
ber of the papers, and had determined that it was
improper to proceed until they had received docu-
ments that would show the extent of the claims.
As the business now stands, we find it referred
to a select committee, instructed to examine the
papers, and report their opinion thereupon. This
report will form the grounds of decision for the
House. Now the gentleman would wrest the busi-
ness from the committee, and urge the House into
a decision without any of the necessary informa-
tion. The attempt was unprecedented. Mr. G*
said he never knew a similar instance where the
select committee had not been previously dis-
charged.
1007
HISTORY OF CONGRESS.
H. OP R.
French Spoliations.
Masch, IVi
Mr. Lowndes rose to explain. FIc said that
when he informed the House that the cotninittee
had never been called together, he had been in-
<luced to say so, from never having been himself
notified, though a member of the committee.
Mr. Bayard thought the motion ought to pre-
vail for the reason assigned by the honorable gen-
tleman from Connecticut. He has properly re-
marked that we are not now called on to decide
the abstract question, but only to say what course
of proceeding shail be pursued. The point ought
now to be decided whether the business shall be
sent to a select committee, or to a Committee of
the Whole. The gentleman from Pennsylvania
says it is altogether unprecedented to take a sub-
ject out of the hands of a select committee. But
this will not be the effect of the resolution ; which
will only facilitate the business before the com-
mittee, and shed additional light on the path they
ought to pursue. We do not wish to interfere
with the operations of the committee, but to de-
cide a question that will greatly facilitate their
proceedings, and which question ought to be set-
tled in a Committee of the Whole. It is pecu-
liarly and strikingly proper to postpone the ques-
tion of repealing the internal taxes until a deci-
sion shall have been made on these claims. Not
that we are anxious to decide upon them imme-
diately, but because we are solicitous not to pre-
judge all claims to indemnity by repealing the
very taxes on which the indemnity must depend.
Do gentlemen mean to decide at once thus pre-
cipitately against all indemnity whatever? If
thev are not in favor of so deciding, surely they
will not be for immediately deciding on the in-
ternal taxes.
Let the gentleman from New York classify the
claims as he pleases, can he tell the extent of the
demands ? May thev not amount to five million
or ten million of dollars? And if to either sum,
can we with propriety dispense with the internal
taxes ? It appears from the report of the Secretary
of the Treasury that the whole of the revenue for
the year 1803 and 1804 will be wanted, [f, then,
these claims shall be allowed, and shall produce
an increase of the public debt, the fund derived
from the internal revenue will be required.
It is cruel to decide at once against the claims
of our merchants. If it is predetermined not to
give them relief, at least allow them the consola-
tion of a hearing. Whoever votes for now taking
up the question of the repeal of the Internal taxes,
votes, not only against indemnifying, but also
against hearing the merchants ; because he votes
away all means of indemnification. It is hard,
peculiarly hard, that at the moment when you
are about to throw the whole burdens of the Gov-
ernment upon the merchants, you should deny
them a hearing, an impartial nearing, of their
claims. Suppose there should be a combination
of these men, seeing the Government act towards
them with such flagrant injustice, to refuse all im-
portations. I ask, if you do not, by such treat-
ment, put the Government entirely into their
hands?
If gentlemeo will agree to postpone the ques-
tion of internal taxes, we will agree to posipc«t
this question, if they are not prepared to detj?
upon it. The subject of the internal taxes a i^
least pressing of all the subjects before tbeHociie
The hill, indeed, ought not pass until we k&f
the appropriations that are necessary to be made:':
the preseat year. Have gentlemen showiuc!:
they show, that with propriety these taxes can k
dispensed with from any retrencbments tbatr<:
be made in our expenditures? I do not knovET
official document on this point, except thatcfJi
Secretary of War, who, in his very correct repc
says there will be a saving in his departmemcti
little more or less than $500,000; which repor.i
confess I do not understand. The Commiuet:
Ways and Means say there will be a rctrtoc:-
ment in the War Department of a samDotti-
ceeding $400,000; which mode of expression 1 ::
not precisely comprehend. Surely we ougk::
know with precision the sums that will be reqairti
for the objects of the Government before weaU>
don our resources.
Mr. EusTis thought the object of iDdemniija
our merchants very important both iQits&a'kf
and its consequences. And, first, as to iu imx:i
it was known to be great. The conseqaeceu:
these applications will be a hearing, aod pra:^
dure thereon. And the amount of the claimii
well as the nature of them, ought to baie§irii
influence on the deliberations of the Horn, kil
yet we talk of deciding the abstract question. vLr.
the very facts on which we are to decide arte-
before us. For it will be perceived by the paU:
prints that the claims of the mercbaDts of '-.^
State of Massachusetts are not yetbroufbtu
ward. The necessary evidence is not before c^
House. I appeal to the gentlemen to koow bcv
we are to act, understandingly, if the subject bt
taken up now. What is the abstract queuot
Will gentlemen say they will pay all deoifit
before they know anything of their namre c
amount?
The gentleman from Delaware bad stated fi^'*
that this is a question whether the interaal tai^^
shall be repealed or not. 1 know the mvfJ-
taxes must be repealed. I consider the codto^
tions and proceedings which have already \^-
place here and elsewhere as having shaken :»
revenue to its centre ; as having placed it iniK-
a situation as to prevent your officers from bti::
able to collect it — its collection being pecula-'
dependent upon the good faith of the commua>i<
My own opinion was, that the repeal of ^^
taxes should have been the last act of thesesjiw
but a diflerent aspect has been given to the ^s:-
ject ; the people expect the taxes to be imm^*^
ately taken off*; and I therefore think it l^''-
pass the biM at an early day.
The claims of our merchants are very s«"*^
and merit great consideration. But the rc«c*
which gentlemen are so anxious to retain, to tuc-
will be but as the light dust in the balaoef- •
presume that the losses of the merchants of Ma**
chusetts alone are not less than five to ten »^'
lions o£ dollars. But to act understandiDgly op^
them we must have evidence as well of ^^
1009
HISTORY OP CONGRESS,
1010
March, 1802.
French Spoliations.
H. orR.
amount as their nature, both of which we at pre-
sent want.
Mr. RuTLEDGE. — I am sorry the resolution of
my honorable friend from Connecticut is not ac-
ceptable to the gentleman from New York. It is
not the least indelicate to that committee. On
the'contrar^r, were I a member of that committee, I
should feel infinitely gratified by it. I would ask
solicitouslv, whether it were possible that Con-
gress would agree to this principle before the de-
tails were gone into. We are now forgiving that
information to the committee.
The honorable ^ntleman says this resolution
COD veys no light. But I will say, that, if adopted,
it will confer not only light, but comfort to our
merchants. It will foster their hopes, and animate
tbem to meet the difficulties under which they
are staggering.
The gentleman from Massachusetts says there
is no evidence of fact. What fact ? Surely he
will not say there is no evidence of the French
having conaemned our vessels, and of their having
committed vast spoliation. If this were so. how
happens it that an American embassy had de-
manded compensation ; and that, on the ulterior
negotiations of the Grovernment, the Government
had said we will abandon it, that we may release
ourselves from guarantying to France ner colo-
nial possessions. Had this not been so, France
might have called upon us to guaranty her West
India possessions, and to supply her with men
and money. From this situation we have been
kept by those negotiations which terminated in
an abandonment of the just claims of your mer-
chants on the French Government or her citi-
zens. And this constitutes your good bargains.
If these are facts, we possess sufficient evidence
not only to justify, but to compel our paying the
merchants, if under the influence of common
honesty. The amount is perfectly immaterial.
Whatever it is we must pay it. It is true that of
the millions claimed. Government may not in law
or equity be compelled to pay more than a small
part. But if you establish the principle that there
shall be an indemnity made, you enable your
committee to devise the mode of collecting evi-
dences of and settling the validity of the claims.
The e^entleman from Massachusetts has ob-
served that my honorable friend from Delaware
has boldly avowed his object to be to refuse to re-
peal the internal taxes. We do avow it. For if
we once repeal (hem, then we shall be told there
is no money wherewith to pay these claims how-
ever just.
Before we repeal these taxes we ought clearly
to understand the state of our Naval Establish-
ment. We ought to see whether it is to be fos-
tered or starved. I perceive that the Naval Com-
mittee call for $160,000; but where is it to come
from?
Bat the gentleman from Massachusetts says
these taxes, right or wrong, must be repealed.
For, he says, the public expectation has already
decided the question ; and that, indeed, the public
officers could not now collect them. But I hope
for the honor of the Government, and of the
American people, this opinion is not correct. I
hope the Government has still energy enough to
collect, and the people honesty enough to pay
them, without resistance. In certain sections of
the Union the payment has been resisted. But
those who opposed were compelled to pay the
tax. It is possible that in some quarters there
may be furtner resistance. But it will be partial.
The people generally will pay ; and I am sorry
any contrary suggestion has been made. I hope,
too, the people will not be led astray either by
Executive communications or conversations.
Mr. MiTCBiLL begged to be indulged in making
a few observations on what had fallen from the
gentleman from South Carolina. I do not know
that these observations will satisfy his mind, but
they will at least serve to justify my own charac-
ter as a Representative of a portion of the Union
respectable for its mercantile opulence. I believe
the subject of indemnities, in the contemplation
of gentlemen, has swelled much beyond its real
magnitude. I believe that a large portion of losses
were so covered by insurance that Government
will not be obliged to pay for them. I feel as
sincerely for the merchants as any gentleman;
yet I do not wish to swell the subject to an im-
proper magnitude. Suppose, as the gentlemen
wish, we say we will indemnify, does that pay the
claims?
Besides, it is not so evident, as some gentlemen
assert, that our merchants have been deprived of
valuable rights by the mode in which the French
Convention has been ratified. Let gentlemen re-
collect the mass of depredations committed by
Great Britain, and the engagements, under treaty,
of the British Government to make reparation for
them. Yet, notwithstanding this engagement,
reparation has been to this day evaded, under the
pretext that the claims under one article depend
on the construction given to a preceding article.
Now, suppose in the French Treaty there were
the same provisions as in the British Treaty,
would this have produced payment ? No. The
operations under the treaty might have gone on
as long as under the British Treaty, with the like
effect, and without any substantial provision being
made. I state these circumstances barely to show
that the renunciation in the French Treaty is not
so grievous as some gentlemen imagine.
It is manifest that an inattention to similar
claims has been considered as less a departure
from right among nations than among individu-
als. And, judging of the future by the past, my
opinion is that a retention of the article stricken
out of the French Convention, would not have
benefited the claims of our merchants, or afibrded
them any adequate eventual compensation. In
France, as on the other side of the Channel, there
would have been claim raised against claim, pre-
text against pretext, and the boards for adjusting
the several claims might have been, in this case,
as in the other, dissolved.
It is said by the gentleman from Delaware, that
it is the object of gentleman on his side of the
House to prevent a repeal of the internal taxes.
Though I admire the gentleman's candor, I be-
1011
HISTORY OF CONGRESS.
H.opR.
French Spoliations,
MARcai*»J.
lieve it is needful to repeal these laws. I believe,
too, the people wish them repealed. But I further
believe, that if future events shall show the ne-
cessity of restoring these taxes, the good sense of
the people will restore them; and if the indemni-
ties agreed to be made shall require them, I be-
lieve they will be restored. The work of examin-
ing these claims will be the work of years. What
is the conse(|uence? Will the present repeal of
the internal taxes interfere with the doing sub-
stantial justice to our merchants ? Suppose these
taxes are removed, are not the products of the
country increasing? and are not our resources in-
creasing with our population? The truth is,
whenever your Treasury wants a fresh supply of
resources, the people will submit to what tneir
Representatives desire. Are we to legislate for
succeeding ages? No. We are to suffer our suc-
cessors to act for themselves ; and I have no doubt
either of their ability or their inclination to do
justice.
From a review of the whole subject, I see noth-
ing to shake the confidence of the public, or to
alarm the merchants. I conceive that the repeal
of the internal taxes to-morrow would not be in
the least injurious to the mercantile claims.
When these, however, are brought forward on
their substantial merits, I have no doubt they will
be heard, and provided for.
The gentleman from South Carolina asks, if
the internal taxes are repealed, from what source
the $160,000 for naval purposes will be drawn?
I will inform that gentleman that it will be de-
rived from an unexhausted appropriation, and
that the money is now on hand.
The gentleman has insinuated the existence of
a disposition that the Navy should be crushed. I
know of no such intention. I believe true policy
dictates that a prudent course should be pursued
by this country for the protection of commerce ;
and that we should take a middle course between
no navy and a widely extended one.
Mr. John C. Smith wished to save time, and
would therefore decline entering into a discussion
of the merits of the mercantile claims. He would
merely observe, that a refusal to take up the sub-
ject at this time would be considered as an entire
refusal to attend to it. He could not help cou-
?ratulating the gentleman from Massachusetts
Mr. EusTrs) on at lait finding a reason for vot-
ing in favor of the repeal of the internal taxes.
But though that reason may be satisfactory
to him, I must say, it is not so to me. It is. how-
ever, to be regretted that the honorable gentleman
had not sooner discovered it, as it might have
influenced his vote on a former occasion.
Mr. Dana. — If I understood the honorable mem-
ber from New York, he admitted the propriety of
making some indemnity ; and if so, I could not
understand why he dwelt so elaborately upon the
minutiae of detail, to show why we ought not to
indenanify. Nor can I yet understand him, un-
less his object be to let the subject sleep, and to
say that the longer it is delayed, the less the chance
of reparation.
The gentleman says, property insured cannot
be recovered. But is that gentleman. comi::v
he does from the first commercial citr a ^
Union, yet to learn that, in the ca.<« of Ic^
insurer stands precisely in the place of tbe ics.*-.
Is he so ignorant of this fact as not to koor u
the underwriter, in such circumstances, btci'
entitled to the same indemnity with him w*^ :
underwritten ?
With regard to the analogy attempted betr-^
the British Treaty and the French CoDreoti.:
is totally incorrect. For, in the British T^r
we had insisted upon the claims of our menu:
to reparation by Britain, or her subjects ;irbfr^
in the French Convention, we had renouDce-:.
claim. Nor were the remarks of the hoDorti-
member more fortunate resuiecting the opent '
under the British Treaty ; for he must koori:
our merchants have, in many cases, receirde:-
pensation under it.
One concession has been made whichld^c:.
expect would be avowed so early, either br if
gentleman from Massachusetts or the gtotles::'
From New York ; a confession that is foosiid.:
the principle that the House, before tzKX'K
the important details which ought to rc.j>
their decision, are so placed bythehca^i-^
Executive ministry, that certain taxes^re^c-
mended to be abrogated, must be repeaiec. Xc
must repeal them. The public cUmoristie.v^
and you must obey it. I did not suppose iii^^
80 soon hav^ been avowed that we areuDd^r.^
absolute rule of Executive influence, and lU-
obey il, we are compelled to perjure oorici^
standings.
Th^ gentleman considers himself as instr-*
by the will of his constituents. Forloio. isit*
is our situation, if we are so bound dowo. lit -
gentlemen are so instructed, for myself Idisc^^
such degrading fetters; I disclaim the igncs^-
ious insmuation of acting either under Minii'-^''^
influence, or under popular inst^uctioo$:u^
can only say, I consider the confession of ib'^--
orable members from Massachusetts and >:<
York the more precious, as coming from eei '^
men so well acquainted with Ministerial myst^'
Mr. Bavard.— The honorable gendemanir -
Massachusetts has thanked me for theasi'
my avowal that I am opposed to the repe^
these taxes. But I do not wish to be ihaakec:-^
more than I really said. It is true, that 1 do -•
think this the proper time to repeal all of t-^^'
taxes, because I do not know tnat Govern:.?'
may not want them.
Gentlemen charge us with an undue lUi-;
ment to these taxes. But, why do we wisbu'^
They bring no money to us, or to our frieuds.
participate not, nor expect to participate la^-
loaves and fishes. We expect no office. "^^
know that, in a few days, there may not bee^
a deputy postmaster ou our side to share l^
Why, then, can gentlemen attribute to usa^-^
to support taxes to feed their creatures.ortoj«-
per their luxurious appetites? No. sirjih?''*
not our motives. We are anxious to pff^f'';
them while they appear to us to bcnece^^^^
support the credit of the Government ; wc*-"
1013
HISTORY OF CONGRESS.
1014
March, 1802.
French Spoliaiions,
H. opR.
we are convinced that on it depends not only our
present welfare, but that of future times. But
the moment gentlemen, by fair calculation, show
us thai we can do witHout these taxes, that mo-
raeDt I will agree to take them off, and all others
that they show to be unnecessary.
The gentleman from Massachusetts has broach-
ed a new species of ethics. He says, if the amount
of claims shall be small, we may pay, but if large
we cannot. But I will tell that gentleman I have
never acknowledged such a principle of morality.
I believe if the merchants have a just demand for
one dollar, we must pay it ; and if they have a
just demand for one hundred millions, we must
pay that too. Nor can I too forcibly express my
astonishment at an opposite principle avowed by
this House.
The gentleman says you want evidence, and
therefore ought not to act. But can you examine
each distinct case ? If the subject goes to a se
lect committee, and they shall be allowed years to
decide, still they will have to establish some prin-
ciple; for instance, that a certain description of
vessels was captured uniustly by the French ; that
the iniured merchants had a moral claim on the
Frencn Government for reparation ; that the
United States had bartered away their rights, and
that Government, in consequence, is bound to in-
demnify. If the House decide that the Grovern-
ment is bound to relieve in one case, are they not
bound to afford relief in all similar cases? Will
you not. then, be obliged to make a general pro-
vision that all claims, so circumstanced, shall be
allowed ? Here is a great mass of claims ; some
made now, and some not likely to be made for
years. What more, then, can you do, than decide
the principle which shall be applied to them ?
My opinion as to indemnity is, that whoever
had a valid claim against the French Goyernment,
which the United States extinguished, has a de-
mand against the United States, which she must
satisfy. Put the case to its consequence: Will
gentlemen tell me whether, according to any prin-
ciple of morality, where you have taken from your
citizens all chance of recovery, you are not bound
to indemnify for that of which you have deprived
them? Where the French Government was not
bound to pay before the convention, you are not
now bound to pay. So, in the case of war, you
are not bound. But where the claim on the
French Government was perfect, and you destroy-
ed that claim, your obligation to pay cannot be
evaded. I wish to know if the establishment of
this principle requires facts?
With respect to the circumstances of particular
cases, this House cannot act. On those numerous
grades of credibility that will be attached to the
various claims that shall be made, you cannot de-
cide. To effect this you must establish some com-
petent tribunal. You can establish the principle ;
but the details could not be settled by Congress,
even if their attention were exclusively directed
to that subject, in three years. Having decided
the principle, it will be proper to leave the appli-
cation of it to your courts oi law.
Mr. Bacon hoped that a great deal of time
would not be spent in explormgthe secret motives
of individual members. He supposed they should
all stand or fall on their own consciences. He
hoped, therefore, they should have the question.
Mr. S. Smith. — I am against the proposition of
the gentleman from Connecticut, because to act
now upon it will be in direct opposition to the
uniform order of the House. If our attention
is thus to be withdrawn from every important ob-
ject before us, I do not know how we are po-sibly
to progress with the public business. I know of
no case, where a particular subject has been re-
ferred to a select committee, and it has afterward
been taken up in the House, while it remained
with the committee. I should have understood
the motion, if it had been to discharge the select
committee, and to refer the subject to a Commit-
tee of the Whole.
As gentlemen, however, have taken so wide a
ran^e in the field of debate, I hope their course
will produce a saving of time, and that we shall
not have their speecnes over again on repealing
the internal taxes.
It is not my purpose, at this time, to enter into
a discussion of the claims of our merchants, be-
cause I think this is not the proper occasion. But
I will tell gentlemen, that if tney were disposed
to destroy those claims, thev could not have pur-
sued a plan more effectually calculated to do it.
Had such been my intention, I would have offer-
ed a resolution so broad and vague as to alarm
the whole community as to the amount of indem-
nity. I would have endeavored to throw the cen-
sure attached to their losses on the present Admin-
istration. I would have opposed their claims to
the wish of the nation to repeal the internal taxes.
All these steps I would have taken to frustrate
any indemnity ; and they are just the steps taken
by gentlemen who profess so strong a regard for
the merchants. Let me tell those gentlemen un-
til they shall pursue a far different plan, we must
doubt whether they are in earnest to pay the
merchants for their losses.
If the public business is to be thus perpetually
procrastinated, I hope the gentlemen with whom
I act will be firm enough, after rejecting this mo-
tion, to pursue the other business even to a late
hour.
The yeas and nays were then taken on Mr.
Griswold's motion, to postpone taking up the
bill on internal taxes till to-morrow, in order to
take up his resolution on French spoliations ; and
decided in the negative — yeas 33, nays 54, as
follows:
YsAS — James A. Bayard, Manasseh Cutler, Samuel
W. Dana, John Davenport, John Dennis, Abiel Foster,
Calvin Goddard, Roger Griswold, William Barry
Grove, Seth Hastings, Joseph Hemphill, Archibald Hen-
derson, William H. Hill, Benjamin Huger, Thomas
Lowndes, Ebenezer Mattoon, Lewis R. Morris, Thomas
Morris, Joseph Pierce, Thomas Plater, Nathan Read,
John Rutledge, John Cotton Smith, John Stanley,
Benjamin Tallmadge, Samuel Tenney, Thomas TH-
linghast, George B. Upham, Killian K. Van Rensse-
laer, Peleg Wadsworth, Benjamin Walker, Lemuel
Williams, and Henry Woods.
1015
HISTORY OF CONGRESS.
m
H. OP R.
Internal Taxes — State Balances.
March, l^':
Xats — Willia Alston, John Archer, John Bacon,
Theodorus Bailey, Phanuel Bishop, Robert Brown,
William Butler, Samuel J. Cabell, Thomas Claiborne,
Matthew Clay, John Clopton, John Condit, Richard
Cutts, Thomas T. Davis, John Dawson, William
Dickson, Lucas Elmendorf, Ebenezer Elmer, William
Eustis, John Fowler, Edwin Gray, Andrew Gregg,
John A. Hanna, Joseph Heister, William Helms,
James Holland, David Holmes, George Jackson, Chas.
Johnson, Michael Leib, John Milledge, Samuel L.
Mitchill, Thomas Moore, Anthony New, Thomas New-
ton, jr., John Randolph, jr., John Smilie, Israel Smith,
John Smith, of New York, John Smith, of Virginia,
Josiah Smith, Henry Southard, Richard Stanford, Jo-
seph Stanton, jr., John Stewart, David Thomas, Philip
R. Thompson, Abram Trigg, John Trigg, Philip Van
Cortlandt, John P. Van Ness, Joseph B. Varnum,
Isaac Van Home, and Robert Williams.
Previous to the call of the yeas and nays, Mr.
S. Smith desired to be excused from voting, as he
was interested in the question.
INTERNAL TAXES.
The House then went into Committee of the
Whole on the bill for repealing the internal taxes.
Mr. Dennis moved to strike out of the first sec-
tion all the words between *' spirits" and " paper."
He said his object was to discriminate between
the tax on stills and distilled spirits, and all the
other internal taxes. He believed the collection
of the tax on stills and distilled spirits more diffi-
cult and extensive than that on tne other objects
of internal taxation. He was far from giving into
the opinion that he must keep up the same num-
ber of officers to collect a part as the whole of
these taxes. He believed that all the taxes except-
ing those on stills and distilled spirits, may be col-
lected without any of the officers at present em-
ployed in the collection of the internal revenue.
The collection may be entirely turned over to the
collectors of the customs and the deputy postmas-
ters. In case his amendment did not prevail, Mr.
D. said he did not know how he should afterward
vote. The collection of the tax upon stills has
been said to be productive of a system of espion-
age hateful to a free people. His objection did
not apply to the other articles. He was of opinion
that, m the collection of the duties upon stills, in
order to prevent frauds upon the revenue, it was
necessary to enter into regulations so complex as
to render the tax very obnoxious; regulations so
complicated that few are competent to the under-
standing of them. He believed it was this which
had rendered the tax so unpopular, if it really was
unpopular. On the other hand, he believed that
all the other internal taxes could be collected for
five per cent.
Mr. D. said he did not hesitate to say that, if it
should be found that the Government were pos-
sessed of more means than were required to sup-
port public credit and defray the expenses of Gov-
ernment, the taxes on brown sugar, salt, coffee,
molasses, dec, should be reduced, instead of taking
ofi the taxes on pleasurable carriages, sales at auc-
tion, &c., as tb« former were drawn principally
from the poor, while the latter were paid by the
ich and luxurious. It was a fact well known that
brown sugar, coffee, bohea tea, salt, and mcliM
were necessaries of life, and that there wi<jrj>
ly a person in the community, faoweTer lev:
circumstances, that did not consume a poi:. .
them.
Mr. HuGER inquired, whether the ameD^::':
could not be divided so as to take a d.*::
question upon each article?
The Chairman said it could.
The question was then taken on strJidt;::
refined sugar, and lost — ayes 24.
On striking out licenses to retailers, lost v.
out a division.
On striking out sales at auction; lost-tr^f
On striking out pleasurable carriages; !.'-
ayes 23.
On striking out stamped vellum, parchmnin
paper ; lost — ayes 14, noes 52.
Several amendments were then made br*'
Randolph affecting the details of thebiil.n
were ordered to be printed, and then the He*
adjourned.
Tuesday, March 16.
Mr. John C. Smith, from the Coinai« >:
Claims, who were instructed on lhe29tli'>fhW'
ary last, "to inquire into the expediency i{^^
ing provision, by law, for the paymcDi d -^
loan office and final settlement certificates as ::i
have been lost, and for the payment or ik?w
of which application was made prior to (be \^
day of June. 1794," made a report thereon; ^.:-
was read, and ordered to be committed to iCv
mittee of the whole House on Monday next.
Mr. Randolph, from the Committee of J^»"
and Means, to whom were referred, on the fina-
ultimo, such parts of a petition of sundry is^'- !
tants of the county of Fairfield, in the Nort>
tern Territory of the United States,/- as rei^
to the payment of interest on the principal ao*
of the purchase money due by the petiiicac
the United States, for lands in the said Temr
' . . 11
until the instalments of the principal sbSi. ^
spectively, become due, and to a rensioc i-
amendment of the laws of Congress resp?^'-
the purchase and title of the said lands." na.:*
report thereon ; which was read and consi^-''
Whereupon.
Resolved^ That so much of the said ^^^
referred to the Committee of Ways and M''-
as hereinbefore recited, ought not to be grasif-
STATE BALANCEa
The bill for extinguishing State balances v*
read a third time, when Mr. Davis moT*^-
postponement to the first Monday in .Noreffi^
Tnis motion was supported by Messrs. Di^'
Bacon, Elmer, and Goddard, who declared lif^^
selves adverse to the passage of the bill; aw''
posed by Messrs. Bayard, T. Morris. Rasdc*'
and Nicholas, who declared themselres in i> '
of the bill.
Mr. Griswold delivered his sentiments a^^;
the postponement, declaring, howefer, hjs*
miqation to vote against the passage of tiie k^
017
HISTORY OF CONGRESS.
1018
Iarch. 1802.
Internal Tcures,
H. OP R.
The question of postponement was taken by
eas and nays, and carried — yeas 48, nays 42, as
allows:
YsAs — John Bacon, Phanuel Bishop, Robert Brown,
V'illiam Butler, Samuel J. Cabell, Thomas Claiborne,
fatthew Clay, John Clopton, John Condit, Manaaseh
utler, Richard Cutts, John Davenport, Thomas T.
•avis, Ebenezer Elmer, William Eustis, John Fowler,
alvin Goddard, Edwin Gray, John A. Hanna, Seth
[astings, Joseph Heister, William Helms, Benjamin
[uger, George Jackson, Michael Leib,ThoB. Lowndes,
ibenezer Mattoon, John Milledge, Thomas Moore,
.nthony New, Joseph Pierce, Nathan Read, John
milie, Israel Smith, John C. Smith, Josiah Smith,
[eniy Southard, Joseph Stanton, jr., Benjamin Tall-
ladge, Samuel Tenney, Thomas Tillinghast, Abram
'rigg, John Trigg, George B. Upham, Joseph B. Var-
um, Isaac Van Home, Peleg Wadsworth, and Lem-
el Williams.
^Xats — Willis Alston, John Archer, Theodorus Bai-
y , James A. Bayard, Samuel W. Dana, John Dawson,
>hn Dennis, William Dickson, Lucas Elmendorf,
bid Foster, Andrew Gregg, Roger Griswold, Wil-
xm Barry Grove, Joseph Hemphill, Archibald Hen-
erson, William H. Hill, James Holland, David Holmes,
'harles Johnson, William Jones, Samuel L. Mitchill,
icwis R. Morris, Thomas Morris, Thomas Newton, jr.,
36cph H. Nicholson, Thomas Plater, John Randolph,
., John Smith, of New York, John Smith, of Yirgnnia,
amuel Smith, Richard Stanford, John Stanley, John
tewart, John Stratton, David Thomas, Philip R.
'hompson, Philip Van Cortlandt, John P. Van Ness,
'illian K. Van Rensselaer, Benjamin Walker, Robert
Villiams, and Henry Woods.
INTERNAL TAXES.
The House went into a Committee of the Whole,
D the bill for repealing the internal taxes.
The amendment offered yesterday by Mr. Ran-
OL.PH, and other amendments offered by him,
Sec ting the details of the bill, were agreed to
rithout a division : when the Committee rose and
>ported the bill and the amendments.
The House immediately took up the report of the
/ommittee. and agreed to all the amendments ex-
ept one, with other amendments.
Several additional amendments were suggested,
rhen Mr. Dennis moved to recommit the bill.
>r amending the details, to the Committee oi
Vstys and Means.
The motion was supported by Messrs. Dennis,
^ANA, Goddard, and Bayard ; and opposed by
lessrs. Randolph, Smilie, and Varnum.
Before the question was taken an adjournment
7BS called for, and carried.
Wednesday, March 17.
Petitions of sundry inhabitants of the Territory
>f the United States Northwest of the river Ohio,
vere presented to the House and read, stating
heir disapprobation of certain proceedings of the
^jegislative and Executive authorities thereof;
md praying that a State Government may be
•stablished for the people of the said Territory, to
le admitted into the Union upon the same terms
fvith the original States. — Referred.
Mr. Wadsworth, from the committee ap-
Eointed, on the twenty-fourth ultimo, presented a
ill to alter the time of holding the district court
in the district of Maine; which was read twice,
and ordered to be engrossed and read the third
time to-morrow.
A message from the Senate informed the House
that the Senate have passed a bill, entitled '' An
act to empower John James Dufour, and his asso-
ciates, to purchase certain lands ;" to which they
desire the concurrence of this House.
Mr. Gregg observed that the acts of Congress
respecting a marine corps allowed the President
to dismiss the privates, but not the officers; in
consequence of which restraint, though a consid-
erable reduction of the men had taken place, all
the officers were yet retained. He thought it
proper that the President should have the same
power to reduce the officers as the men. He,
therefore, moved the following resolution :
Resolved, That a committee be appointed to inquire,
whether any, and, if any, what alterations are necessa-
ry in the several acta relative to the establishment of a
marine corps, and in an act fixing the rank and pay of
the commanding officers of the corps of marines ; and
that the committee be authorized to report by bill or
otherwise.
Ordered to lie on the table. ,
Mr. Gregg further offered the following reso-
lution :
Resolved, That the President of the United States
be requested to communicate to this House such in-
formation as he may have received, relative to the cop-
per mines on the south side of Lake Superior, in pur-
suance of a resolution passed the 16th day of April,
1800, authorizing the appointment of an agent for that
purpose.
Ordered to lie on the table.
Mr. Griswold observed that the general esti-
mate of the Secretary of War, made to the Com-
mittee of Ways and Means, on the saving that
would probably result from the reduced Military
Establishment of the present year, which made it
amount to the sum or four or five hundred thou-
sand dollars, was to him not perfectly satisfactory.
He therefore moved that the Secretary of War
be directed to lay before this House a statement
of the number of troops which were actually in
the pay of the United States during the year
1801, together with the expense which has in fact
arisen for the support of the Military Establish-
ment for the same year.
Mr. Randolph remarked that, as the Commit-
tee of Ways and Means required no other than
the result of the saving likely to arise from the
military reduction, the Secretary had given all
the information asked for.
The consideration of this subject was post-
poned till to-morrow.
INTERNAL TAXES.
The House then took up the bill for repealing
the internal taxes.
Mr. Randolph hoped the motion, made vester-
day, to recommit the bill, would not prevail, as he
1019
HISTORY OF CONGRESS.
li:
H. OF R.
Internal Taxes.
MiBcn;
was prepared to offer immediately to the House
the ameodments which gentlemen required.
The question on recommitment was then taken,
and lost without a division.
Several amendments, relating to the details of
the hill, were made.
When Mr. Dennis renewed the motion made
by him in Committee of the Whole, somewhat
varied, viz : to strike out of the repealing clause
all the articles of internal taxation, excepting
^ stills and domestic distilled spirits, and stamped
yelluro, parchment, and paper."
He moved that the question be taken by yeas
and nays on each article distinctly.
The question was accordingly stated on striking
out '' refined sugars."
Mr. S. Smith desired to he excused from vo-
ting, as he was interested in a sugar refinery.
The question was put and lost — yeas 30, nays
54, as follows.
Ykas — James A. Bayard, Manasseh Cutler, Samuel
W. Dana, John Davenport, John Dennis, Abiel Foster,
Calvin Goddard, Roger Griswold, William Barry Grove,
Seth Hastings, Archibald Henderson William H. Hill,
Benjamin Huger, Thomas Lowndes, Ebenezer Mattoon,
Lewis R. Morris, Thomas Morris, Joseph Pierce, Thom-
as Plater, Nathan Read, John Cotton Smith, John Stan-
ley, John Stratton, Benjamin Tallmadge, Samuel Ten-
nev, Thomas Tillinghast, George B. Upham, Peleg
Wadsworth, Benjamin Walker, and Lemuel Williams.
Nats — Willis Alston, John Archer, John Bacon,
Theodonis Bailey, Phanuel Bishop, Robert Brown,
William Butler, Samuel J. Cabell, Thomas Claiborne,
Matthew Clay, John Clopton, John Condit, Richard
Ctttts, Thomas T. Davis, John Dawson, William Dick-
son, Lucas Elmendorf, Ebenezer Elmer, William Eustis,
John Fowler, Edwin Gray, Andrew Gregg, John A.
Hanna, Joseph Heister, William Helms, James Hol-
land, David Holmes, George Jackson, Charles Johnson,
William Jones, John Milledge, Samuel L. Mitchill,
Thomas Moore, Anthony New, Thomas Newton, jun.,
Joseph H. Nicholson, John Randolph, jun., John Smi-
lie, Israel Smith, John Smith, of New York, John
Smith, of Virginia, Josiah Smith, Henry Southard,
Richard Stanford, Joseph Stanton, jun., John Stewart,
David Thomas, Philip R. Thompson, Abram Trigg,
John Trigg, John P. Van Ness, Joseph B. Vamum,
Isaac Van Home, and Robert Williams.
Mr. Dennis then moved to strike out " refined"
for the purpose of inserting " brown" sugar. He
said he did this the more fbrcibly to contrast the
votes of gentlemen who were in favor of a dis-
crimination between the necessaries and luxuries
of life.
Mr. Claiborne desired the Speaker to read the
title of the bill ; which be did, as follows : " a bill
for re])ealing the internal taxes;" when Mr. C.
asked if brown sugar was within the meaning of
the term '* internal taxes."
Mr. Dennis replied that it was always in order
to amend the title of a bill.
The Speaker declared the motion out of order,
as a decision had just been made against striking
out the whole term "refined sugars."
Mr. Randolph wished with the gentleman
from Maryland, (Mr. Dennis,) a distinct ques-
tion to be taken upon each of the articles of in-
ternal revenue. He believed the abolitioo i
constituted the most forcible reasoQ for h;^.!
the whole. If there were a disposiiioD \u'A
taxes on the necessaries, and to retaia i:h
the luxuries of life, let us see who areforikr
and who for the other.
Mr. Dennis, equally with the gendemit
Virginia, was for a discrimination. Iqc^
ance with the decision of the Chair. beTai
withdraw his original motion, and nowmcr''
strike out 'licenses to retailers," io order..
sert " bohea tea."
Mr. Varnum here asked for a dirisioi * .
question.
The Speaker said it was indivisible.
Mr. HuoER said it had been bis intenticB r-
the motions before the House were dispose: . i
hare moved to insert an amendment for i yt \
tion of the duty on salt; he inquired if br
not precluded from so doing by the decK ;
the Chair.
Mr. Dennis replied that it was his pcn.H^
move the insertion of "salt," in the rc;is .
" pleasurable carriages."
Mr. HuoER observed that the principtN
of his motion would be to show that tMirr.
of duties on salt was about equal to ikt^-.'
saving of this bill.
The question was then taken bv yeasu:'^*
on striking out "licenses to retailers," ia a- :
insert " bohea tea," and lost — yeas 31. mts^' •
follows :
Yeas — James A. Bayard, Manasseh Ctitlff.><B'
W. Dana, John Davenport, John Dennis, Ab? >
ter, Calvin Goddard, Roger Griswold, Wiliiia: E'
Grove, Seth Hastings, Joseph Hemphill, Ai^a
Henderson, William H. Hill, Benjamin Hogfr.^--
as Lowndes, Ebenezer Mattoon, L.R. MorT».1^^
Morris, Joseph Pierce, Thomas Plater, Natltf ^
John Cotton Smith, John Stanley, John iBC-;
Benjamin Tallmadge, Samuel Tenney, Thoui >•
Unghast, George B. Upham. Peleg Wadivoitti^
jamin Walker, and Lemuel Williams.
Nats— Willis Alston, John Archer, Job B*«
Theodorus Bailey, Phanuel Bishop. Robcn Brf.
WiUiam Butler, Samuel J. Cabell, ThomM Cii'C
Matthew Clay, John Clopton, John Condit R'^
Cutts, Thomas T. Davis, John Dawson, WiUitfy
son, Lucas Elmendorf, Ebenezer Elmer, MrTllas^*
tis, John Fowler, Edwin Gray, Andrew Gres?;^
A. Hanna, Joseph Hcistcr, William Hdn* 'f^
Holland, David Holmes, George Jackson, Chari^'^
son, Wm. Jones, Michael Leib, John MiDedff 1^=*
Moore, Anthony New, Thomas Newton, jr-i J?*:
H. Nicholson, John Randolph, jr., John Soiilif f
Smith, John Smith of New York, John Smith A^
ginia, Josiah Smith, Samuel Smith, Heniy doaU
Richard Stanford, Joseph Stanton, jr., John ^*^'
David Thomas, PhiUp R, Thompson, Ahn^ f
John Trigg, PhiUp Van CorUandt, John P. ^»»/;
Joseph B. Vamum, Isaac Van Home, wJ i^
WilUams.
Mr. Dennis next moved to strike oui"«^'
auction," and insert '*' coffee."
A division of the question was called for*-
the Speaker declared not to be in order.
Mr. Eustis inquired whether it could be t-
1021
HISTORY OP CONGRESS.
1022
^ARCH, 1802.
Internal Taxes.
H.orR.
ier to insert expressions that might grossly viti-
,te the bill, and wrest it from its mam purpose ?
le said this was not the place to contrast the rel-
itive merits of a tax upon sales at auction, and a
luty upon coffee. He nad not the least objection,
it a proper season, to afford gentlemen the oppor-
unity of contrasting the advantages attending
he repeal of these taxes, and the duties on other
Tticles.
Mr. S. Smith appealed from the decision of
he Chair, on the division of Mr. Dennis's
notion.
Mr. Thomas Morris called for the yeas and
lays.
Mr. S. Smith called for the reading of the rule
vhich declares, that ^* any member may call for a
[i vision of a question where the sense will admit
f it."
The question was then taken by yeas and nays
m concurring in the decision ot the Chair, and
ost — yeas 40, nays 48; and the motion was de-
ermined to be divisible.
Yeas — James A. Bayard, Manasseh Cutler, Samuel
N . Dana, John Davenport, John Dennis, Lucas Elmen-
orf, Abiel Foster, Calvin Goddard, Roger Gritwold,
Villiam Barry Grove, Seth Hastings, William Helms,
oscph Hemphill, Joseph H. Nicholson, Joseph Pierce,
rhomas Plater, Nathan Read, John Cotton Smith,
ohn Smith, of New York, Josiah Smith, John Stanley,
iohn Stratton, Benjamin Tallmadge, Samuel Tenney,
rhomas Tillinghast, George B. Uphram, Killian K.
/"an Rensselaer, Peleg Wadsworth, Benjamin Walker,
^ernuel Williams, and Robert Williams.
Nats — John Archer, John Bacon, Theodorus Bailey,
i^hanuel Bishop, Robert Brown, William Butler, Sam-
lel J. Cabell, Thomas Claiborne, Matthew Clay, John
vlopton, John Condit, Richard Cutts, Thomas T. Davis,
lohn Dawson, William Dickson, Ebenezer Elmer,
i^'illiam Eustis, John Fowler, Edwin Gray, Andrew
jrregg, John A. Hanna, Joseph Heister, William H.
^ill, James Holland, George Jackson, Charles Johnson,
Michael Leib, John Milledge, Thomas Moore, Anthony
^ew, Thomas Newton, jr., John Randolph, jr., John
3milie, Israel Smith, John Smith, of Virginia, Samuel
)mith, Henry Southard, Richard Stanford, Joseph Stan-
on, jr., John Stewart, David Thomas, Philip R. Thomp-
K)n, Abram Trigg, John Trigg, Philip Van Cortlandt,
lohn P. Van Ness, Joseph B. Vamum, and Isaac
^an Home.
The question was then stated on striking out
'sales at auction."
Mr. HuGER said he entertained doubts of the
propriety of repealing the internal taxes. If those
to whom has been devolved the management of
3ur public concerns, say they can spare six hun-
Jred and fifty thousand dollars, the amount of
these taxes, be it so. But if this sum can be dis-
pensed with, he said he was anxious that at least
a part of it should go to relieve those who do not
pay a large share of the internal taxes from the
burden of other taxes. He was solicitous, there-
fore, to give his vote in such a way as to exhibit
to his constituents his efforts to reduce the duty
upon salt and other necessaries of life.
Mr. S. Smith remarked that the gentleman
from South Carolina doubted the po.<isibility of
sparing six hundred and fifty thousand dollars. If
he really entertains such a doubt, it must be en-
tirely destroyed when he learns that the duty on
salt, which he wishes to take off, alone amounts
to above seven hundred thousand dollars !
Mr. HuGER replied that he was not so anxious
for popularitv as some gentlemen. With regard
to salt he only wished to reduce the duty so as to
affect the revenue about two hundred and eigh-
teen thousand dollars.
The question was then taken bv yeas and nays
on strikmg out '^ sales at auction," and lost — yeas
32, nays ^, as follows :
Yka.8 — James A. Bayard, Manasseh Cutler, Samuel
W. Dana, John Davenport, John Dennis, Abiel Foster,
Calvin Goddard, Roger Griswold, William Barry Grove,
Seth Hastings, Joseph Hemphill, Arehibald Hender-
son, William H. Hill, Benj. Huger, Thomas Lowndes,
Ebenezer Mattoon, Lewis R. Morris, Thomas Mor-
ris, Joseph Pierce, Thomas Plater, Nathan Read, John
Cotton Smith, John Stanley, John Stratton, Benjamin
Tallmadge, Samuel Tenney, George B. Upham, Kill-
ian K. Van Rensselaer, Peleg Wadsworth, Benjamin
Walker, Lemuel Will.am8, and Heniy Woods.
Nats — Willis Alston, John Archer, John Bacon,
Theodorus Bailey, Phanuel Bishop, Robert Brown,
William Butler, Samuel J. Cabell, Thomas Claiborne,
Matthew Clay, John Clopton, John Condit, Richard
Cutts, Thomas T. Davis, John Dawson, William Dick-
son, Lucas Elm^dorf, Ebenezer Elmer, William Eus-
tis, John Fowler, Edwin Gray, Andrew Gregg, John
A. Hanna, Joseph Heister, William Helms, James Hol-
land, David Holmes, George Jackson, Charles John-
son, William Jones, Michael Leib, John Milledge, Sam-
uel L. Mitchell, Thomas Moore, Anthony New, Thom-
as Newton, jr., Joseph H. Nicholson, John Randolph,
jr., John Smilie, Israel Smith, John Smith of New
York, John Smith of Virginia, Josiah Smith, Samuel
Smith, Henry Southard, Richard Stanford, Joseph Stan-
ton, jr., John Stewart, David Thomas, Thomas Tilling-
hast, Philip R. Thompson, Abram Trigg, John Trigg,
Philip Van Cortlandt, John P. Van Ness, Joseph B.
Vamum, Isaac Van Home, and Robert Wilhams.
The Speaker. — The question now is on the re-
mainder of the motion to insert ^' coffee.''
Mr. Griswold observed that the gentleman
from Massachusetts had supposed this was not
the proper place to decide whether we will re-
duce the duties on imported goods. But \{ the
word " coffee" be inserted, the effect will be that
all duty upon that article will cease. Gentlemen
may suppose that it is not proper to dispense with
the whole duty; but if it be repealed, there will
be nothing to prevent the imposition of a new
duty by a new bill. Mr. G. thought the present
duty too high ; he thought it would be productive
of smuggling, and he thought it oppressive.
Mr. S. Smith said the present, in his opinion,
was not the proper place to introduce the repeal
of the duty on coffee. It will be remembered that
early in ttie session he had brought forward a res-
olution, which was committed, to inquire whether
any and what alterations were necessary in the
laws imposing duties on imports. He then stated
that he was disposed to reduce the duty on coffee,
as now proposed by the gentleman from Connec-
ticut, (Mr. Griswold,) and when that question
should come in the proper place, he would be
1023
HISTORY OF CONGRESS.
life
H. OF R.
Internal Taxes,
Mabcb. \^ _
found voting with him to reduce the duty on
coffee.
Mr. Dennis said bis object was not to dispense
with the entire duty on bobea tea, sugar, salt, and
other imported articles. But he bad no other op-
portunity than that wbich he now embraced. For
after it shall have been decided to abolish the
whole internal taxes, gentlemen will tell us they
cannot dispense with any of the duties upon im-
ported articles. The only question at present is,
whether we shall make a reduction of the duties
on imported articles, or totally abolish the internal
taxes.
Mr. Lowndes said the subject was so impor-
tant that he must beg the indulgence of the House
while he submitted a few remarks. The motion
goes to abolish the present duty on coffee, in order
to lay a smaller one. A gentleman f^om Mary-
land, (Mr. S. Smith,) informs us that he feels a
conviction that the present duty is too high, and
that it may introduce the practice of smuggling.
But that gentleman must excuse my saying that
his professions differ from his practice. He is
now for voting away all revenue derived from the
luxuries of life, from pleasurable carriages, from
refined sugar, and other articles, and tells us after
gettinjr rid of these resources he will, by and by,
vote ^r more moderate duties oiv imported arti-
cles. Good God! Is not this course putting it
entirely out of his power to do so? The people
of this country deserve some consideration. This
is a new era. The people are reduced from a
state of opulence to much distress by the cessation
of European hostilities. The carrying trade, so
lucrative to our merchants, is taken away. Labor
has heretofore been high in our cities, from the ac-
tivity of commerce. Now there is an alarming
stagnation, and the most valuable portion of our
citizens are without occupation; and yet taxes,
predicated on the existence of the war, are to be
continued on a peace. Gentlemen who have got-
ten power seem to have forgotten the people who
gave it to them. By the stagnation of trade our
farmers will be injured. Flour, which lately sold
for thirteen dollars per barrel, now sells for six
dollars. If the profits of the farmer be reduced
ousfht not his expenses of living also to be reduced?
What good can result from repealing the duties on
stills, or pleasurable carriages, and on sales at auc-
tion ? Is not the tax on stills a good one, and has
it not been approved by experience, ever since it
came into operation in the year 1790? Have any
inconveniences been experienced ? Have not, on
the other hand, the distilleries increased to the
enormous number of twenty-two thousand ? Has
not the revenue likewise increased ? and are not
these strong evidences of the propriety of the
tax ? Suppose it should restrain the immoderate
use of spirituous liquors, is not the result benefi-
cial to the morality of our citizens ?
But the articles of tea and coffee are different
in their nature — they are promotive of morality,
and restrain the use of ardent spirits. The gen-
tleman from New Jersey has informed us, that
the lower class of citizens in his State do not in
general consume tea and coffee. But, however it
may be in New Jersey, I will inform the gr_i-
man that in Charleston the lower class of •-.
zens — the very carmen — do coDsume these i:
cles, which, atter the fatigues of the day.aret.
evening solace.
The gentleman from New Jersey has vaii :
that the people of this country hare never bt-:
oppressed by taxes. I am happy to hear g?z
men on that side of the House make this cc:>
sion. I believe they never hare been oppn*> .
by our predecessors. I will not say ther Ir
never felt the burden of taxatioo, because I -
lieve they have felt it. But they hare coQ<iJr-
the taxes laid necessary for the security o:':.
Government.
This tax upon coffee appears to me to be a>
cessary, impolitic, and oppressive- It was jl
when we were subjected to the depredaticL-
foreign nations, and menaced 'with hostility: *i.
yet it is to be continued after the occasicc -
which it was created nas ceased. The people r_
feel it. They will discriminate between the : -
and the price of the commodity, and iher r
understand from what quarter the tax proceec:
There is another pernicious coDsequeo^ zi>
will result from the continuance of this hihtrr
upon coffee. It will hold out a dangeroestr-p*
tation to the merchants to smuggle. CjI^i'-
sugar are articles of great value and small ^^
The day is not distant when the circumstaacr'
the country, the great extent of the seacoa>t.aL.
our numerous ports, combined with this tftzr.
tion, will introduce the pernicioas practice. .
hope, for these reasons, the House will a^rff
reduce these taxes, and hold out to the cocsl
those enjoyments which have been heret.:
possessed.
Mr. Elmer said, that as to those articles w: *
are necessaries, and those which are loxir.
gentlemen will differ. He thought it. hovf- :
extraordinary that it should be insisted that L: -
tea and coffee are necessaries of life, and carra::'
luxuries. He certainly considered plea»G:2t.t
carriages as of this description ; yet maov rr
riages, and more than one-half of those in oh '
New Jersey were of the first necessity. Hew...
feel very happy in reducing the duty apar i.
and coffee, if our circumstances shaul ad a J '
But though they may be extensiFely usel.:'
no means follows that it is good policy to esc: :-
ase the consumption of them. He believed ^aci-
of our own products would form a very ?.'•
substitute for coffee. With regard both tc -'
and coffee, he knew that so far from being nec^
saries of life they were consumed by the cini^:
generally in proportion to their wealth.
Mr. E. said he had not expressed the sentioifi:^
ascribed to him by the gentleman from Sos::
Carolina. He had neither said that the pec:/
had been, or had not been oppressed by taxe$. ^
bad said that tea and coffee were not necesskr-^
of life. As well might tobacco, irhich was £
general use, be called a necessary of life^
Mr. E. concluded by observing that he sb-^:^
be pleased with a diminution of the dacies cp^s
tea and coffee ; but that it must be evideat t^
1025
HISTORY OF CONGRESS.
1026
March, 1802.
Internal Taxes.
H. OP R.
was not the proper time to consider its expediency,
as the bill then before the House respected exclu-
sively the repeal of the internal taxes.
A member inquired where the word ** coffee"
was to be inserteil.
Mr. Nicholson said the motion made had been
to strike out the words " sales at auction," and in-
sert "coffee." The House having determined
not to strike out, there was of consequence no
place wherein to insert.
Mr. Griswold replied that the difficulty into
which gentlemen were thrown, arose froni their
having reversed the decision of the Chair, but
that the question on inserting " coffee" must be
put.
Some additional conversation ensued, when
Mr. Hill observed that he had voted against the
decision of the Chair from an impression that it
was wrong, but he was now satisfied it was cor-
rect; he, therefore, moved a reconsideration of
the decision of the House.
Mr. Davis moved to adjourn.
Mr. Southard said he felt no embarrassment
In his opinion the decision not to strike out entire-
ly superseded the motion to insert.
The question of adjournment was lost.
Mr. S. Smith asked whether the question of
reconsideration was a question of order, or whe-
ther it was one that admitted of debate ?
The Speaker said he would consult the rule
respecting questions of reconsideration.
Mr. Bayard said, in order to allow time, he
moved now to adjourn ; carried — ayes 4&, noes 38.
Thursday, March 18.
An engrossed bill to alter the time of holding
the district court in the district of Maine was read
the third time, and passed.
Mr. John Cotton Smith, from the commit-
tee, to whom was referred, on the twenty-ninth
of January last, the petition of Alexander Rox-
bourgh, made a report thereon ; which was read,
and referred to the Committee of the whole House
to whom was committed, on the sixteenth instant,
a report of the Committee of Claims on the sub-
ject of Loan office and final settlement certificates.
The bill sent from the Senate, entitled " An act
to empower John James Dufour and his associates
to purchase certain lands," was read twice, and
committed to a Committee of the Whole.
INTERNAL TAXES.
The House resumed the consideration of the
bill for repealing the internal taxes.
When the motion of Mr. Hill to reconsider the
decision of the House of yesterday, reversing the
decision of the Chair on the point of order, was
put, and the yeas and nays called, on motion of
Mr. Stanley, and lost — yeas 38, nays 42, as
follows :
YsAt — James A. Bayard, Manaaseh Catler, Samuel
W. Dana, John Davenport, John Dawson John Dennis,
Ebenezer Elmer, Abiel Foster, Calvin Goddard, Roger
Griswold, William Barry Grove, Seth Hastings, Wil-
liam Helms, Joseph Hemphill, Archihald Henderson,
William H. Hill, David Holmes, Benjamin Hnger,
7th Con.— 33
William Jones, Thomas Lowndes, Ebenezer Mattoon,
Samuel L. Mitchill, Lewis R. Morrid, Thomas Morris,
Joseph H. Nicholson, Joseph Pierce, Thomas Plater,
Nathan Read, John C. Smith, Josiah Smith, John Stan-
ley, John Stratton, Benjamin Tallmadge, Samuel Ten-
ney, Thomas Tillinghast, Killian K. Van Rensselaer,
Pcleg Wadsworth, and Lemuel Williams.
Nats — John Archer, John Bacon, Theodorus Bailey,
Phanuel Bishop, Robert Brown, William Butler, Sam-
uel J. Cabell, Thomas Claiborne, Matthew Clay, John
Clopton, John Condit, Richard Cutts, William Dickson,
Lucas Elmendorf, John Fowler, Edwin Gray, Andrew
Gregg, John A. Hanna, Daniel Heister, James Hol-
land, George Jackson, Charles Johnson, Michael Leib,
John Milledge, Thomas Moore, Anthony New, Tho-
mas Newton, jr., John Randolph, jr., John Smilie,
Samuel Smith, Henry Southard, Richard Stanford,
Joseph Stanton, jr., John Stewart, David Thomas,
Philip R. Thompson, Abram Trigg, John Trigg,
Philip Van CorUandt, John P. Van Ness, Joseph B.
Vamum, and Robert Williams.
Mr. Ranuolph observed that in the repealing
bill before the House, there was a deviation
from the terms of the bill proposed to be repealed,
in relation to the ta*x on carriages. In the last
bill the terms were ^^ carriages for the conveyance
of persons" — in the bill before the House the ex-
pression was ^* pleasurable carriages." He moved
therefore to strike out ^ pleasurable," and insert
after "carriages" the words '^for the conveyance
of persons."
Mr. T. Morris called for a division of the
question.
The question was then stated on striking out
*' pleasurable," and carried without a division.
Mr. Griswolo then moved to strike out "car-
)j
riages
Mr. G. said he hoped the House would ag[ree
to retain this tax. as ii fell exclusively on the rich.
It had been said by the gentleman from New Jer-
sey, that it did not fall exclusively upon the. rich
in that State; but in all the other States it cer-
tainly did. It will be easy to collect it. without
a train of supervisors and collectors. You may
make it the duty of the owners of carriages to en-
ter them with the collectors of customs, er deputy
postmasters, and inflict a penalty on a default of
payment. In this way the collection will not cost
you more than four or five per cent.
This expense is much lower than that paid on
imported articles, no part of which, in the coUec-*
tion, costs less than forty per cent. The importer
pays five per cent, to the collector. This he charges
upon the retailer. He also charges his profit upon
the duties, as well as the first cost ana expenses
of importation ; the retailer again charges his
thirty-three or forty per cent. ; and all these accu-
mulated charges are paid by the consumer. If
this be the case is it not best, if there be any re-
duction in our taxes, is it not demonstrable that
we ought to repeal those which operate exclu-
sively on the poor, and whose collection costs at
least forty per cent., rather than those which are
derived trom the rich, and whose collection does
not cost more than five per cent ?
Mr. Bacon observed, that be thought the argo-
ment of the honorable gentleman from Connecti*-
1027
HISTORY OP CONGRESS.
l(r>
H. or R.
Internal Taxes,
Mabch. \y.
cut not altogether correct. That, in his opinion,
this particular species of tax, in New England,
fell heavier, he believed two-fold heavier at least,
on the clergy, in proportion to their wealth, than
on any other description of men in the commu-
nity; that the clergy in general, particularity in
Massachusetts and Connecticut, were by no means
opulent; that, as it was necessary for the accom-
modation of tneir families, they generally kept a
horse and chaise; that the clergy were greatly
revered in New England, and that so tender were
the State laws in Massachusetts and Connecticut,
that they were never permitted to affect the pro-
perty of that venerable body of men by way of
taxation; that it appeared rather extraordinary
that the honorable gentleman from Connecticut
should be so desirous, by a law of the United
States, to subject our clergv to a tax so unequal
in its operation, and whicn bore so hard upon
them in particular, compared with the rest of the
community.
Mr. So UTHARD. — Under the existing law, which
this motion proposes to continue so far as it re-
spects the tax on carriages, in order to collect this
tax it will be necessary to retain about four hun-
dred and fifty officers, to pay whom the whole
nroceeds of the carriage tax will be inadequate.
I believe the people have no idea of paying a
direct tax to support officers for collecting a car*
riage tax. The gentleman says we may authorize
the collectors or deputy postmasters to collect it.
What! Shall the citizen be obliged to go fifty or
a hundred miles to pay the tax? It will be a
heavy tax indeed, if, m addition to it, the citizen
is burdened with the expenses of a long journey.
A large class of the carriages taxed are of small
value. In the State of New Jersey five hundred
and forty two are of this description, which are
principally market- wagons, and not desifi;ned for
pleasurable purposes — one hundred and fifteen are
of another description, called Windsor chairs, and
are generally owned by people that are very poor.
Add on these to the two dollars tax, the expense
of going a great distance to make payment, and
the fine for neglecting to do it, and you will per-
ceive the extent of the burden.
This tax is also unequal in its operation on the
States.— $5,252, are paid by New Jersey ; $7,325,
by Pennsylvania, and $7,807, by New York Thus
it appears that the State of New Jersev pays al-
most as much ns these larffe and wealtny States,
and that the sunis paid hold no proportion to the
population of the States. The same inequality
will be found in other States.
^ Since gentlemen have taken the poor under
their protection, I hope they will treat them with
especial care ; and that from regard to them they
will leave this tax to the States, who instead of
oppressinsT their poor with a poll and house tax,
may avail themselves of this source of revenue.
If collected by the States, the collection will be
liberated from a heavy expense, as it is well known
that the expense ^f collecting taxes in the States
is very small compared with that of the Union.
Mr. HuGER. — Gentlemen may well be in favor
of taking off this tax, who know that after it is
taken off, we are to bear the burden of tbe '^^
The gentleman from New Jersey says carrii.-
are necessaries of life in his State. This put- q-
in mind of the boy who pelted stones at the I'r :
and who. when called upon to say why h^..
so cruel a thing, said it is a very pleasant thia^ .
me. No doubt it is a very pleasant thing ij<i«
gentleman from New Jersey to get rid of thL>ui
But it is impossible to imagine a tax more ear'
of collection or less oppressiv^e.
Contrast the operation of the internal anii-
ternal duties upon the different States. Ofi.
impost, Virginia pays about eight hundred tkv
sand dollars, while South Carolina, a compa;:-
tiveiy small State, pays about eight hundred u.
four thousand dollars, which is four chousaod i
lars more than the ^reat State of Virginia. Oft^
internal duties. Virginia pays one hundred i::
thirty-four thousand dollars, while South Civ
lina pays only twenty-three thousand do]lar»;s:.
if these taxes are repealed. South Carolioih'
console herself for being released from the p:-
ment of twenty-three thousand dollars. wbil« T.*-
ginia is released from the payment of oiMfe::
dred and thirty-four thousand dollars.
The observation of the gentleman fromUcM-
chusetts. respecting the clergy, is extremcti clv
ous. I nope I respect the clergy as much to lu:
gentleman, or any member on the floor. Hjv.
ever the clergy may be treated in Massac kihc".-
in South Carolina we support and pay ihemw'^
and we treat them as citizens. The very ir?.-
ment of the gentleman, that in his State iberr
exempt from all State taxes, is an argomeot i '
taxing them by the United States.
The arguments of gentlemen are very stncr-
They say the repeal of these taxes has been tail-,
of all over the continent, and because talkni :
and expected, they must be repealed. Wba: dc-.
this mean other than this? If you elect c^
will set rid of these taxes ; and gentlemen zj^
gravely get up, and assign this as a reascafj
their votes.
The next argument is not les? curious. Wei-^
told that though a particular branch of the ini^-
nal duties does not fall heavily, yet that if os: ^
repealed, we must repeal the whole, from ibc iz-
pensc of collection. But if one of these tarn t-
wrong, why not repeal it, and let the others suk
I say with the gentleman from Virginia, tka:
we cannot collect the tax on whiskey wiihc<e: >
system of espionage odious to a free people^ I t2T
no objection to doing it away.
When, too,- we call upon gentlemen for par*'
ular information to enable us to determine U'
comparative merits of internal and external tai*
we are answered by the exhibition of a profoi:.
and philosophic style of silence. I coDceive iii^
when the time comes for a repeal of certain tai-^
we ought to have statements in black and wb.^-
we ought to have chapter and verse; and I &)'•'
always thought it best ever to show our wap >■
fore we do away our means.
Though I shall vote against giving up the ear*
riage tax, and other branches of the iDteinaJ rt'* J
enue, yet if these amendments do not succecc.li
1029
HISTORY OF CONGRESS.
1030
March, 1802.
Internal Taxes,
H. orR.
shall, notwithstanding, vote for the bill. For
though I have strong doubts that the United
States cannot do without these taxes, I am one of
the minority ; J stand not on the vantage ground.
Having therefore strove ineffectually to relieve my
constituents from the hurJen that is likely to be
thrown upon them, I will vote for the bill, though
I think gentlemen ought not to have attempted
(his thing till the last moment of the session, un-
til the savings which are talked of had clearly
been exhibited.
Have these savings appeared ? No ! Accord-
ing to the report of the Secretary of the Treas-
ury not a cent can be snared. The Secretary of
the Navy stated that his Department required
more than a million; and yet m the report of the
Committee of Ways and Means this sum is pared
down, and two hundred thousand dollars taken
from it, without assigning any reason for the re-
daction. It is a fact, then, that these taxes are to
be demolished, and the funds of the Navy and
Treasury Departments to be cut down. When
then, the resources are not over the demands
for the year, and gentlemen are inflexibly bent
on this act, I must say that it is my opinion it is
predicated on popularity. I do not say the pres-
ent Administration are for destroying public cred-
it, the army, and navy. I hope in God it is not so.
But gentlemen will recollect that they have been
charged with these designs. I will ask if it
would not be more prudent first to make savings,
and at the next session, if admissible, to take off
these taxes? But gentlemen are scarcely six
months in the Government, when they pursue
measures, not to pay the public debt, but to de-
stroy > the means of paying it. I speak the more
boldly on this point, as I have no iuterest in the
funds, and am a mere planter.
The expense of collecting these taxes, is in-
sisted on. But it has been shown that many, if
not all the present offices may be done away, and
the expense reduced to a level with the expense
of collecting the imposts ; and thus every reason
for the repeal is done away. Do gentlemen, cast-
ing their eyes over the world, see the defenceless
state of our trade? Do they see a large army
in St. Domingo ? Do they regard the report that
we are about to change our neighbors, and have
a ^reat nation along side of us ? Do they not per-
ceive that the peace in Europe is barely an armed
neutrality ? And yet do they imagine the golden
aee has come ; and that this is the moment to
alter our wary plan, to reduce our resources, and
to leave everything at sixes and sevens ?
I have heard no complaint of any of these taxes,
except those on stills. Let then the last be re-
pealed or modified, and retain the rest. They
vield about two hundred and forty thousand dol-
lars. Retain these, and take off the eight cents
upon salt, which produce two hundred and four-
teen thousand dollars ; leaving twenty-six thou-
sand dollars for the collection. I will ask if the
great bulk of the people will not be benefited by
this change?
Had not things taken their present course, I
should not have called upon the gentleman from
Virginia, (Mr. Randolph.) to support me in my
present proposition. But I recollect that at the
time when the present duty on salt was laid, that
gentlemen inveighed so eloquently against the
measure, that he almost persuaded me to vote
against it. Why then this change? Do not the
people feel it as heavily now as they did then ?
The present state of trade ougKt to influence
our decision on this subject. Our merchants are
in a serious situation. 1 know, as a planter, that
my produce stands unsold, even at reduced prices,
owing to the embarrassments of our merchants.
The want of circulating coin will prevent the
merchants from importing, and us from buying
goods. It is possible that our commerce may not,
but it is probable that it will feline. It ought to
be recollected, that for some years past we have
enjoyed the advantages of neutrality amidst 'bel-
ligerent nations. Hence our tonnage had greatly
increased. It must now decline, and I cannot
conceive that our external duties will be commen-
surate to the demands of the Government for the
next year. You will observe that the Secretary
of the Treasury calculates for a number of years ;
whereas the Committee of Ways and Means cal-
culate only for this year. Though, therefore,
there may b^ resource enough for the present
year, there will be a defalcation the next year,
from the increasing instalments of foreisfn debt.
I have made these remarks, because I tnink they
clearly apply to the proposition before us ; and
because I thmk gentlemen should show us clearly
and unequivocally that this measure is proper, be-
fore we are called upon to support it. I make
this opposition, not because I have any objection
to cuttmg down the expenses of the Government.
I have no interest against their retrenchment. I
have never received, or expect to receive anything
from the Government.
I have also made these objections to account to
my constituents for my voting against these arti-
cles distinctly, in order to effect a diminution of
external duties, and relieve others from the un-
equal burden imposed upon them. But still, as
I before observed, if these motions are all rejected,
I shall finally vote for the passage of the bill.
Mr. Varnum — It has been stated that the tax
on carriages falls altogether on the opulent part
of the community. But, as this observation ap-
plies to the State which I have the honor in part
to represent on this floor, the statement is not
founded in fact. In that State there are four
thousand, two hundred and sixty-one chaises and
other two wheel carriages, on which are paid an-
nually more than $12,000 tax. The whole tax
on carriages of all kinds in that State, is $14,096.
The chaises and other two wheel carriages in that
State, are by no means exclusively owned by the
opulent; yet that description of carriages pays
the principal part of the tax. There are, in that
State, nearly six hundred clergymen, the princi-
pal part of whom are owners of chaises; and
such are their avocations that they cannot con-
veniently dispense with the use of them. But
this class of citizens, although very justly held in
high estimation, are very far from being in afflu-
1031
HISTORY OF CONGRESS.
m.
H. OF R.
Internal Taxes,
Mabch, Ir.i.
eat circumstances; many other persons who are
owners of that description of carriages, have been
in the habit of attending public worship at least
once a week, since they have been on the stage of
action ; which, from their local situation, and the
infirmities of age, it would be extremely difficult
for them to continue to do, if they should be de-
prived of that mode of convevance ; many of this
description of citizens are also far from being in
affluent circumstances. It is a fact, that the tax
is a very unequal one, as it relates to the value of
the property on which it is laid, and a burden-
some one to many who pay it. especially to the
clergy and the description last mentioned.
But, sir, there is another reason which operates
in my mind against the motion, viz : the extreme
inequality of the carriage tax as it applies to the
individual States. The whole tax amounts to
$77,871. Massachusetts pays $14,096 of that
sum, whereas she ought io pay but $10,284, ac-
cording to the Constitutional mode of apportion-
ing direct taxes; that State therefore, is com-
pelled, by this mode of taxation, to pay at least
one quarter-part more than her just proportion.
Is that the case with the State of Connecticut, or
South Carolina ? No sir, Connecticut pays con-
siderably less than her proportion when compared
with all the States ; and not two-thirds of her
proportion when compared with Massachusetts.
She pays $4,564, and her proportion compared
with Massachusetts would be $7,048. South Car-
olina pays $4,329; her proportion with Masschu-
setts would be $6,041. If it is extremely difficult
for gentlemen on this floor, as well as elsewhere,
to divest themselves of self, and the pecuniary in-
terests of their constituents, will not this view of
the subject, in some measure, account for the per-
tinacity of the gentleman last up from Connec-
ticut, and the last gentleman up from South Car-
olina, on the question before you ? But if these
gentlemen are for continuing the tax on carriages,
because it operates favorably to their constituents,
it is to be hoped that the candor of the gentlemen
will permit the members from Massachusetts to
vote in favor of the repeal of a tax so apparently
unequal and unjust as it relates to that State.
There is as great a disparity in the proportion of
this tax paid by Massachusetts, when compared
with Virginia, North Carolina, Kentucky, and
Tennessee, as when compared with the other
States which I have mentioned ; but much to the
honor of the gentlemen from those States, they
are willing to repeal the tax, and equalize the
public burden.
Mr. Speaker, I may be permitted to make one
remark, relative to the repeal of the internal
taxes contemplated by the bill under considera-
tion. In the first place, it is an obvious fact, that
thev operate extremely unequal among the sev-
eral States. Massachusetts alone has stood charge-
able with nearly one fifth part of them when taken
all together, from their first introduction up to this
time. It will not, therefore, be thought improper
in the members from that State, to solicit the re-
peal of so unequal, and so unjust a burden. But,
sir, the high and satisfactory motive for a repeal, is
derived from a firm belief that they are no \iAi'.
necessary. The retrenchments of the prtt:
session wi41 be paramount to their produ=t,i..
the remaining revenue will be amply suEc:.
to secure the public credit, and aieet the exi:-.-
cies of Grovernment. It is therefore to be 'Si.yii
that the motion for striking out carriages wl -
rejected, and that the bill will be parsed.
Mr. Randolph. — I shall give a different tf3* •
from any yet assigned, for votings against the -.
tion to strike out carriages. Sensible of t!.ci
tigue of the House, I shall be as brief as pc-
in the expression of my sentimenis, as weil :r l
a respect to their feelings, as from a regaid u .
own.
My reason for repealing this tax, is not becsi-
I think there ought not to be a carriage tai , : -
because I do not consider that description «.: *«:
as fair and proper ; but because I view it as a is
of a system of taxation which, is unequal ti*
oppressive.
I am glad to hear that the importer recn*-
doublethe sum collected. I ivill not denT.t!:j:r.
1 1 might, this extraordinary statement. 1 iru -
make one use of it, in which I am fairly wanvrrJ
and that is, that this imposition, 'which le i^'t
been so often told is paid by the merchanii^is^:!^
with such peculiar weight upon them, so ki:: J
being a tax levied on them, and so far froE. -
pressing them, is, indeed, collected by theci ^-
vanced by them, but for which they receir^* c
ample return from the labor of the commu:
As, therefore, we are told that the mercbuo
not receive less than a hundred per cenL x. .
sums advanced in anticipation of the rerec.*
is to be hoped that we shall hear no more c^'- •
about taxing one class of citizens to the excl.>« :
of all the rest. The fact is, that the extercii .'.-
ties are not an exclusive tax on that class tf ? -
zens ; for there is no class, but that of the p2
mass of the people, that can afiford to pay thee: t*
mous sums levied on imposts.
We are told the additional imposts upc!:i>2.'.
coffee, brown sugar, d[.c.. were predicated .:•''-
war measures. The answer is, let us reu:n \l-
taxes to pay war loans, for which the war uk
this country have made no provision.
If this tax on carriages be taken ofi^ I bare .
idea that carriages will remain entirely exva;
from taxation. The States will tax them, v: •
at present, they are, in many cases, unable t: :
without rendering the tax a prohibition of ttif i^
of the article taxed.
A gentleman has told the House, on a fore*
occasion, what is the interest of himself aai ■
friends on the subject of taxation. Me sa.<: t
have no interest to insist on the continuacc -
taxes, and asked, are we to be reimbursed vi.
we pay ? Are we not^ on the contrary. C; <
ejected from all participation in the ioaTe» L'i
fishes ? If gentlemen have no interest in w- '-
taxes, why persist in their system ? I will an^7'
for the gentlemen, what interest they have ic c c*
tinue the system, such as it was when ther v^fi
out of power. A system of patronage ha>. t^
them, been a favorite measure; and they hare*^
1033
HISTORY OF CONGRESS.
1034
March, 1802.
Internal Tcixes,
H. OP R-
same interest to continue this part, as the other
parts of their system ; because^ if that party, as it
is termed, should again come into pow^r, as soon
as an occasion offers, the same system will be
brought again into operatioo.
We are told that the external taxes fall exclu-
sively upon the consuming States. I am glad to
hear it. It follows, then, that the manufacturing
States pay the least portion of them. All know,
it requires no superior intelligence to comprehend
it, that every dollar laid on foreign productions
operates as a tax on the consumer, and as a boun-
ty upon our own productions. It must, then, be
acknowledged that there is but little difference
between the standing of the Southern and the
other States. And when it is said that they pay
a lesser proportion of 'th€ internal duties than the
other part«( of the Union, I ask if that is not prop-
er; inasmuch as they pay more than their pro-
portion of the external duties ?
When this Government was first thought of,
what was the contemplation of the nation as to
taxes ? Was it not conceived that Congress would
be confined to an ad valorem duty upon imported
articles ? Instead of that, the Government was
vested with ample powers. In addition to the
exclusive power over duties on imports, the whole
field of excise, direct taxation, &.C., was opened to
them. But was it not understood that these lat-
ter sources were only to be used on extraordinary
emergencies ?
I will ask, if the cultivators of tobacco, cotton,
and other valuable productions, do not consume
imported articles in a greater proportion, than is
consumed in States without staples. You then
tax those who are not only able, but willing to
{lay. And let me say, there is no species of taxa-
tion so oppressive, whatever its amount, as that
which compels the individual taxed to retrench
his personal freedom, that calls upon him to pay
a specific sum, and compels him to pay, no mat-
ter what his ability is. Thus, the contribution of
the consumer of imported articles depends upon
his ability and disposition to pay, and if he pays
more than his proportion, he can censure no one
but himself. Observe the difference between the
situation of this man, who pays his tax voluntari-
ly, and that of him who is called upon to pay for
his still, or for a stamped instrument of paper,
predicated on an existing debt, but from which not
a farthing may accrue to either party.
Besides, there is one great distinction between
the effects of reducing the external taxes, and
abolishing the internal revenues. If you reduce
the duties on salt, tea, sugar, &c., you do not abol-
ish a single office. But, by taking off the internal
duties, yon abolish a host of offices. Look, too,
at the facility with which the duties on imposts
are collected. Eleven millions are collected in
fifty-four towns, by a few collectors, surveyors,
and naval officers. Compare, with this view, the
large number of officers required to collect the
small sum derived from the internal revenues;
and yet, the tax upon imposts is unequal, because
Virginia only imports six millions, while South
Carolina imports fourteen millions. I had not
supposed that a gentleman whom I have known
from infancy, and for whom I have invariably
entertained the greatest respect, would, knowingly,
have attempted to mislead the House. No doubt,
the gentleman thought his statement correct. But
I wul ask, what respect ought to be paid to the
facts of a gentleman, or to arguments de4uced
from those facts, who makes the total amount of
imports and exports introduced into, or taken out
of the respective States, the same with the amount
of articles consumed or raised in those States?
Do we not know, for instance, that Charleston is
the great market^ not only for South Carolina, but
also for other adjoining States ; that it is the im-
porting and exporting town of an extensive dis*
trict of the Union ; and is not the case precisely
the same in other parts of the Union ? i am the
more authorized to make this appeal, from the
gentleman having told us that our tonnage is about
to be reduced ; that our merchants are about sell-
ing their vessels to foreigners ; and that, therefore,
we are about to lose a valuable branch of our rev-
enue. But let us attend to the relative amount of
domestic tonnage and foreign tonnage. Let ua
recollect, too, that our own tonnage is precisely
in the inverse ratio of our revenue ; and that, in
proportion as we have substituted American in
the room of European shipping, has our revenue
derived from tonnage diminished.
The gentleman says, he wishes to retain these
taxes, because the Western States pay so small a
proportion of the duties on imported articles. But
the fact is, that the States of Kentucky and Ten-
nessee pay their full proportion. It is true that
they do not themselves import, but they consume
goods imported into Charleston, Norfolk, Balti-
more, d&c., which goods find their way to those
States.
The gentleman condemns me for not now voting
for a repeal of the tax on salt, inasmuch as on a
former occasion I was strenuous against the im-
position of it. But I will ask that gentleman
whether, when I was so strenuous against the
imposition of that tax, either he or his friends of-
fered to commute the whole internal taxes for it ?
I am ready whenever circumstances shall admit,
to diminish that duty, but not with the views or
gentlemen, who are not so much in favor of re-
ducing the public burdens, as for throwing an
odium upon other measures equally necessary, and
for casting a shade of unpopularity upon this act.
Why do I say so? Because, when power was in
their hands, they were not for reducing them an
iota. On the contrary, their system was to get all
they could, and keep all they got. They would
not commute even the Sedition law for any duty
or tax. As it had been well said by a gentleman
from Kentucky, now power has parted from gen-
tlemen, they are willing to reduce the taxes, to
take them entirely out of our hands, and instead
of letting us apply them, they say let us do it. and
let us use your power to do that which is disa-
greeable to us, in the way that is most agreeable
to you. This, and nothing more nor less, is the
amount of the remarks of gentlemen.
After having experienced the benefits of the
1035
HISTORY OF CONGRESS.
H. OP R.
Internal Taxes,
Vk:
March. 1>
system of these gentlemen, we are now told ihey
have made a great discovery in the mode of re-
ducing ihe public expenses. Pity it was not made
while those gentlemen were in power. So long
as they enjoyed the power, the idea of reducing
the public burdens never entered into their minds;
at any rate we heard nothing of it if it did. Bui
so soon as the nation had dismissed them from
power, so soon as any disposition to that effect be-
came inefficient, we hear the gentlemen loudly
contending for a reduction.
When gentlemen say they are not anxious for
extending a system ot Executive patronage, we
are willing to give them credit for what they say.
But let us see what credit We are entitled to when
we say the same thing. We show, on this occa-
sion, as I trust we shall on all occasions, that we
do not take up their principles with their power ;
that, on the contrary, we advance the same prin-
ciples now, when in possession of power, that we
did, when we had scarcely any prospect of getting
into power.
Of all the articles of internal revenue, if any
were retained, no doubt that upon stamps should
be retained, as it is at once the most productive,
and the least expensive in collection ; and yet.
what do gentlemen propose ? To retain the tax
upon carriages, that only yields the inconsider-
able sum of eignty thousand dollars, and give up
that on stamps, which'produces two hundred and
forty thousand dollars. Why? because the lat-
ter falls on the merchants ; and yet gentlemen
say, in the same breath, the external duties fallen
the consumer, and not on the merchant.
For my part, I am not to be deterred by any
attempt to render this measure unpopular, from
pursuing steadily that system which is congenial
to the spirit of the Constitution, viz: to throw
back the internal taxes into the hands of the States,
only to be used by this Government on a national
emergency. When this Government was estab-
lished, we were informed that these taxes were
never to be laid but on such emergency. Yet the
Government had not been in operation more than
two years, when they were seized . to rear that
system of patronage, which, from the commence-
ment of the Government, has been so favorite a
measure. It is not my purpose here to trace that
system of patronage through its various modifi-
cations, which has been more happily done by my
colleague on a late occasion. But it is my object
to restore the Constitution to its healthful state,
by doing away these taxes; of which should we
retain a part, however small, we might, on a mere
change of men, see it soon ramified to the great-
est extent.
Grentlemen tell us no savins^ has been shown to
be made ; but I think it has oeen clearly shown,
that a saving has already been made more than
commensurate to the whole amount of these in-
ternal taxes. In addition to this sum, is the dif-
ference between the amount received and that
which is payable, which is more than one hun-
dred thousand dollars, for which the Committee
of Ways and Means have made no allowance.
The fact will show the disposition of the com-
mittee, not to insist upon items of small aicc-c:
though in the aggregate those items amc-jr'
nearly two hundred thousand dollars, wh.o
one-fifih of the whole sum of these taxes.
We are told this act is unwise, as the sta:-: .
things abroad is perilous, and that we ougL: * -
to part with the sum of $650,000, because r
revenue from imports may fail. Do gent]*= .
mean to say that, in such evenc. we can ifiv ..
the sum of $650,000, for a defalcation in a revr-.-
of eleven millions ? If this ar^nient ineacsr •
thing, it would dictate the org^aoizatioa of :
system of internal taxation commensurate ic v.
meeting of any defalcation that may accrue. L-
us give them all they want. That defalriL*
may be thirty, fifty, or one hundred per ceot.: u:
it follows that we ought to raise from these iii«
five or ten millions of dollars. It is from ib«*:^
that this source is unequal to the supply of &:*
great defalcation, that we are for g^iviiig it ti|i
I am sensible of having detained the Cocc -
tee longer than I myself had intended, cr r ''
may have wished ; but, from the situation io vr. .
I was placed as a member of the Commirw :
Ways and Means, I felt it my duty to t.:**^
them even at this late hour, before, hovfrrr.f
sit down, I must say that the commitifcKr^
shown that a saving at least equ&I to, 80(17^'^*
bly a much greater sum than the amount c-f 'i?
internal revenues will be made. Estimaz:^
the contemplated reductions at the lowe^i*-!
there will be saved in the appropriatioof :'
the army ^400,000 ; for the navy $SOO.OOO— t*.-*?
will cover the internal taxes. The comiu: -
have said nothing about the abolition of i:-
Mint, which will save $30,000 ; or of the Ju.^-
ary ; nor have they brought into view the lir?
amount of custom-house bonds not yet collecrei
But we are told that this repeal is to take pr^
at the expense of the navy, and that the narr
an institution to which the people are aitadir.
The people certainlv have a ri^ht to decide, ei-
ther they will vest larffe sums in the buildiir -
seventy-fourS; or small sums, that they mar:*.'
their debts.
The estimates on which the ^entlemati r>:-
South Carolina relies, are not estimates msdt r
the Secretary of the Navy for the present t-^'
but for the last year, and the gentleman wiU t..
that the expenses of the present year, suppc-ac
that we keep up the squadron in the Meditfr.-
nean, will amount to a sum less, by S5OO.0O0. il.:
the expenses of the last year. Is the ecistl'.'s^
prepared to show the statement of the Secrt':"
of the Treasury to be incorrect ? Is he prefer •-
to say, that we cannot keep up the amount
what he estimates it at ? We have heretc'."
heard much of confidence in Executive officer,
am not one of those who are for bestowing cici-
dence, where it is not merited ; but I hare :
hesitation to say. I will, until gentlemen sb '
strong reasons for the contrarv, give con 6 J-. ^
to officers, whose character and whose offices ;>"
pend on the fairness of their statements.
Mr. Hdger explained. — He said, he ha<f r
stated that South Carolina consumed the
t.«
1037
HISTORY OF CONGRESS.
1038
March, 1802.
Internal Taxes.
H. orR.
that she imported; he knew the contrarv. But he
contended that South Carolina, and other States
on the seaboard, paid a larger share of the duties
on imported articles than the interior parts of the
Union. Neither did he say, that the reduction in
our tonnage would have any very great effect. He
was aware of the difference between foreign and
domestic tonnage. Yet, certainly, if the enect of
a peace was the losing a large portion of our car-
rying trade, the amount of tonnage must sink.
[A motion was made to adjourn^ and lost.]
Mr. Griswold. — The question is, whether we
shall strike out carriages. On this limited mo-
tion, I did not expect to have heard gentlemen go
into a full examination of the merits of the whole
internal revenue. Having, however, indulged
themselves in the inquiry, it seems necessary to
follow them, even though my remarks should fail
in their application to the carriage tax. It is not
true, as stated by the gentleman from Massachu-
setts, (Mr. Bacon,) that the clergy of New Eng-
land are paupers ; they are not paupers.
Mr. Bacon said, he had stated no such thing.
Mr. Griswold. — They are not paupers, sir.
They are able and willing to pay, with cheerful-
ness, their portion of the public burdens. It is not
true that Connecticut does not pay her proportion
of the carriage tax. The document shows that
she does pay her proportion of it, though that pro-
portion is not so niffh as that paid by Massachu-
setts. Gentlemen nave made it needful to state
the situation of the clergy of New England, in
order to remove the imputation against that order
of men, and to state the proportion of the tax paid
by us to prove that we are not particularly in-
terested in the continuance of this tax.
We wish to retain it, because we deem it neces-
sary, because we deem it a reasonable tax ; and
because it is one that is less expensive in collec-
tion than other taxes.
We are persuaded that, if gentlemen will ex-
amine the documents on the table, they will find
that though vast credit is due to the last Adminis-
tration for the skill manifested by them in the es-
tablishment of the revenue ; yet they will see that
there is no certainty of its amount for the eight
coming years being so productive as they seem to
suppose. If they refer to the document, they will
find that for the three successive years of 1790,
1791, and 1792, the average product of imports,
calculated on the present rate of duties, was
$6,153.000 ; they will also find that, for the six
succeeding years, the average product was 58,350,-
000. Now, I think it is not safe to estimate the
receipts for the eight coming years higher than
those of these six years. It is to be observed, that
these six years included a period of war, which
extended the value of our exports, rendered the
consumer better able to pay, from the high price
received for the productions of his labor ; and in-
creased the consumption of luxuries more than in
time of pestce.. It will also be evident that a va-
riety of items which have gone to make up the
aggregate of the revenue, will, in time of peace,
fail. There are ^6,000 estimated on drawbacks,
which arose from duties paid on imported articles,
afterwards exported from the United States, and
which will cease the moment the carrying trade
ceases. Will any gentlemen say, that in time of
peace we shall continue to import articles for the
consumption of Europe, the Spanish colonies, dbc.
This item, from its nature, is calculated to cease
at the end of the war. It must cease.
Some duties must be reduced. Of wines, the
average product of the duties for the years 1790^
1791, and 1792, was $317,000; for the six suc-
ceeding years, it was $714,000. Do gentlemen
think this amount will be kept up ? During war,
your citizens are able to purchase. In peace the
ability must decline.
The duty on suffar, in three years, has risen
from $560,000 to 1902,000. The duty on coffee
has risen almost in the same 'proportion'; and if it
is not reduced, you will lose by its being smug-
gled ; the temptation will be too strong to be
resisted.
You cannot, therefore, calculate upon more
than the average of the above six years. Indeed,
you cannot with safety calculate so high. The
Secretary of the Treasury has grounded his cal-
culations on the idea that the consumption of for-
eign articles will increase with our population.
But I totally disagree with him. I will ask whe-
ther you will consume more than you can pay for ?
I will ask how you will be enabled to pay lor more
now, in a time of peace, than you were enabled
to pay for formerly f Are the European markets,
or those of the West Indies increased ? If not,
it will follow that the consumer^ of your produce
are not increased, though your productions are
increased. And this state of things, instead of
inci easing the consumption of foreign goods, will
only tend to increase your manufactures.
Other circumstances, too, have arisen, that have
enabled us for some years past to pay for more
goods than we can expect to be able to pay for
hereafter ; viz : the funding the national debt, and
the selling a large amount of stock abroad. I hope
we shall have no more national debts to fund.
If it is not safe to rely upon a higher amount of
duties than the average receipts of the last six
years, then you cannot rely upon a higher annual
receipt, for duties on foreign articles, than $8,350^-
000. But suppose you derive $8,500,000 from this
source. In addition to this fund, the Secretary of
the Treasury calculates upon receiving^ annually
$400,000 for the sale of lands. I am mtjlined to
believe the amount will not be so large; but set
it down at that. The postage of letters will yield
$50,000, and the dividends upon bank stock $71,-
000. And here you have the whole amount of
your revenue, with the .exception of a trifling
sum for patents, fines, &c. The whole in the ag-
gregate amounts to $9,071,000.
I will now inquire into the expenses for the
eight coming years. According to the Secretary
of the Treasury, we are to pay $7,300,000 on ac-
count of the debt. But I will not take his calcu-
lation. I will state it at $7,000,000, which we
must pay ; the civil list $780,000— it will be un-
derstood that this is only what is absolutely ne-
cessary ; the foreign intercourse, &c.. estimated
1039
HISTORY OF CONGRESS.
IW
H. OP R.
Internal Taxes,
Mabch. \^z
at $200,000 ; the Military EstablishmeDt $1,420,-
000, as estimated at the opening of Congress, and
which is the estimate of the ensuing, and not of
the past year, as stated by the honorable member
from Virginia.
Mr. Randolph said he did not slate it to be the
old estimate, but an estimate formed on the old
basis.
Mr. Griswold — I took it so. It is not safe to
put the expenses of the Military Establiiihment,
for the eight coming years, lower than this esti-
mate. Gentlemen ought to consider the situation
in which we are placed. They ought to consider
our neighbors on the frontier, and those who are
likely to be our neighbors. They ought to con-
sider the accidents to which all nations are ex-
posed. They ought to consider the necessity of
sending a strong garrison to the posts on the Mis-
sissippi ; and when they consider all the circum-
stances, they will agree with me, that it is not
safe to trust the defence of the country to arrange-
ments that will involve a smaller expense.
At the beginning of the session, the expense of
the navy was estimated at $1.100,000 dollars; we
since find it reduced to $900,000. On this esti-
mate I Jiave two remarks to make. I ask whether
gentlemen ar£ content to take this estimate for
the eight coming years. How is it to be made
out ? By striking off $150,000 appropriated to
progressing in the building of the seventy-fours,
and $50,000 for making navy yards. What is
meant by this ? May not gentlemen as well lay
down the navy at once ? You have not at present
a sinffle dock where a large vessel can be commo-
diouMy repaired ; and to make such a dock will
cost at least $50,000. It is easy to make this re-
duction on paper; but we may as well burn our
ships of war, or give them as a present to our sis-
ter republic. I trust, however, ttie country is pre-
pared to give up the protection of commerce ; and
if not prepared, we must devote annually $1,100,-
000 ; which indeed, is short of what will be
required.
Taking the old estimates, which are the only
correct ones, Government must expend annually
$10,500,000. But make a reduction for the Mili-
tary and Naval Establishments of $500,000, which
the necessary measures of the Government will
not warrant — and the annual expenditure will be
$10,000,000; compare with this, your revenue,
which only amounts to $9,071,000.
And in this estimate, I have made no allowance
for that infinite variety of contingent events that
under every Government are constantly arising.
I ask, then, if it is safe, or proper, to give up the
carriage tax, and all the other internal taxes, when
they will probably be wanted for the expenses of
the Government f
I am perfectly aware that our finances are in
such a state, owing to the sreat skill with which
they were managed under the old Administration,
that we have now three millions of surplus rev-
enue in our Treasury ; and that gentlemen, by
applying this sum to the wants of the two or
tnree coming years, may meet the expenses of the
Government, and perhaps go on till another Pres-
idential election. But I trust we shall tct»
upun this narrow system. I trust we shall t-
look forward only to another Presidential eiectoa
But that taking into our riew the eight efi«ca(
years, at the expiration of which time, in cotv-
quence of the reduction of the debt which ¥
then have been accomplished, a large sura caL >
dispensed with, we will wait till that periaia^
rives, before we dispense with these bra&cbe ^
revenue, or any other.
Believing it unsafe to abandon any of vti
taxes, I shall vote against repealing all of ik-
I have, of consequence, no idea of giving up ^:
tax either upon stamps or stills. I believe ijii
be necessary ; as necessary for the support cf p;i>
lie credit, as for the honor and safety of t>
nation.
We have no pecuniary interest in retami:
these taxes. We share not the loaves and fisk^
but we are deeply interested in the suppcn ^
public credit, in the safety and honor ot thf li-
tion ; and let money go where it may, I viJ l-
ways vote for money enough to support ^Sj
credit, and to maintain the honor and saikc .:
the nation.
I believe that, in this project, more is Miboe^
than is expressed. I know, whenever a dekic-
cy shall occur, where it will fall. I knowiia:r.
will fall on our Naval Establishment. Loc4 ud
to the sentiments and conduct of those wbc cs.^
held seats on this floor, and who now hold vs
offices under the Executive, and show me via
they voted a cent for a Navy. Did they not i^
variably say, let commerce take care of itscj'
Yes, I have heard these declarations, aad i!^"
account for these measures to starve the ^V^
It is, therefore, I feel alarmed, knowing fall«%-
where the deficiency is to fall.
But it is said, the collection of the internal ui*
es is attended with ^reat expense, and, therffcrt
they ought to be given up; that they increax
Executive patronage, and, therefore oo^fat ta t
surrendered. I deny that their collection cc-tn
more than that of duties on imports. It is »ta*r.
by the Treasury officers, that the expense oa &
posts is only nve per centum. But how ol\ct
have you been told that your merchants r*.
only your collectors. Gentlemen have ikt«:
heard me say that all the duties fall on the en-
chant. I know the contrary; and I know iki
to protect the fair trader from injury, all you ba^<
to do is to make them so high as to produce sx^s-
gling, or so prompt in their payment as to prern:
the merchant from collecting them from the ci.>
sumer before he pays them into your Treai<7
But the merchant sells to the retailer, whom '^
charges twenty or twenty five per cent, on tie
duties paid by him. Before the articles scid c-
into the hands of the retailer, they come charr'f..'
with an advance of twenty-five per cent, li-
retailer sells to the consumer with his thirty -tbr^
per cent, added. I did not say thc^y stood chaistc
with one hundred per cent, but with forty ]-'
cent, at least. All those who make these chazr--
are collectors ; so that the fact is, that instetd .:
costing five per cent., as asserted, they cost to vjt
1041
HISTORY OF CONGRESS.
1042
March, 1802.
Internal Taxes.
H. or R.
man who pays the tax — ^the coosumer — more than
forty per cent.
Let us in this view of comparative expense,
tarn to the other branch of the subject :
1. As to carriages.
The Secretary of the Treasury informed us, at
the beginning of the session, that the internal rev-
enues, taken together, cost in collection nineteen
per cent. Now that officer acknowledges that
they do not ^ost more than fifteen per cent. When
an officer states one thing to day. and another
thing to-morrow, I submit whether it is not bet-
ter to make our own calculations. It is easy to
prove that, in Massachusetts, the collection of the
internal taxes does not exceed eight per cent., and
it may be made equally low elsewhere. There-
fore you may reduce this sum within ten per
cent. Indeed, if you carry these taxes as far
as )rou ought to do, to meet and equalize the duties
on imported goods, you may bring the collection
down to five per cent. Carry the duty on distill-
ed spirits as high as on imported spirits, and my
life for it, the expense will not be greater.
But, from another view, it will appear that the
expense paid by the consumers of the objects of
internal revenue, is not so high as on imported
articles. For instance, distilled spirits are either
retailed by the distiller, or sold directly to the re-
tailers, and the distiller charges ordinarily no ad-
vance upon the tax, but gets his profit by being
paid for the labor of distillation i this makes a
difference of twenty per cent. In other articles,
in licenses to retailers, there are no additional
charges, no twenty per cent. Sales at auction
are in the same situation ; with respect to car-
riages, there is ti still greater difference. The
consumer pays nothing but the tax, without pay-
ing any commission or profit. Stamps are precisely
so situated in most parts of the country.
The calculation, therefore, is fallacious, that
makes the expense of collecting the internal reve-
nue greater than that on imported articles; as,
with regard to the latter, the consumer, in pay-
ing your duties, not only pays the collection, but
also pays the merchant and retailer. So that
these internal taxes are collected with the least
expense of any. For what matters it to the con-
sumer, whether he pays twenty per cent, to the
merchant, or to the retailer, or to «your officer ?
He actuall]^ pays it in either case.
Now, this being clear, and also that the taxes
may be so modified as to be collected still lower,
particularly that on carriages, (which may be
collected by the deputy postmaster, who may re-
ceive the tax of persons li\ling at a distance
through the mail,) I ask, why give up the inter-
nal taxes in preference to those on imported arti-
cles? The gentleman from Virginia (Mr. Ran-
dolph) tells us that the system of internal taxes
is repugnant to the theory of a free government ;
that it requires a host of officers to collect them.
But what is the danger from this source? Is it
not well known that the tax gatherer is always
odious, and that instead of having influence to
subvert the Government, he ceases, as soon as he
becomes an officer, to have that influence he
would otherwise have possessed ? The officers,
too, are very few — only one supervisor and a few
collectors in each State. The gentleman must
think very contemptuously of the people, to sup-
pose that they can be corrupted by a few officers,
with inconsiderable salaries. For these reasons,
I consider the obiection an argument against eve-
rything; as applicable to the Army, the Navy,
and every other important object that can be
named. It is an objection which may do to talk
about, but which has no solidity in it.
I have only one further observation to make ;
and tha( is, that if we can part with any taxes,
though my opinion is, that if we sincerely mean
to suppiut the credit of the Government we can-
not part with any, but if we can, we ought to
{rive up the tax on some imported articles. Coffee
IS taxed five cents a pound ; the present price, in-
cluding the impost, is not more than twenty cents;
the duty is more than fifty per cent, on the cost
abroad. This enormous duty is a great tempta-
tion to smuggling. It can be easily done. Let
gentlemen look to the seacoast. The temptation
to gain fifty per cent, is immense ; and I am appre
hensive the practice may be gone into, unless you
lessen the inducement; and in that event your rev*
enue is gone ; for the payment of it depends upon
the honor of your merchants. Such is your sea-
coast, that the vigilance of a thousand officers
could not resist the practice, if the disposition
were not wanting. If this duty on coflfee shall
produce smuggling in the merchant who im-
ports it, his neighbor, who imports sugar, will say,
my neighbor is growing rich by this practice ; I
have the same right with him ; and the practice
will catch like wild-fire. We ought, therefore,
to put these excessive duties down.
Besides, as to sugar, that, in my opinion, is a
necessary of life. The duty is fifty per cent, on
its first cost. It must, therefore, be oppressive;
and if we can dispense with any of the imposi-
tions, it ought to De with those which fall upon
the necessaries of life, which are consumed by the
poor.
For these reasons I am for retaining the car-
riage tax, for retaining all the internal taxes, and
for modifying and improvinff them. I believe
that in this way the expense of the collection may
be greatly lessened, and such a modification of
the taxes take place as shall produce an equal
pressure of the public burdens upon the whole
community.
Mr. Bacon said he should reply to the honor-
able jrentleman from Connecticut only by declar-
ing in so many words, that his (Mr. G's.) an-
swer to his (Mr. B's) observations, was predicated
solely on his own assertion, as a fact, and on the
repetition of the same assertion, of what was to-
tally void of truth ; and that, for a reason suffi-
ciently obvious, he had refused to give him an op-
portunity, in its proper place, to correct the error.
An adjournment was moved, and lost.
The question was then taken by yeas and nays,
on striking out carriages, and lost — yeas 25, nays
48, as follows :
YxjLs — Manasseh Cutler, Samael W. Dana, John
1043
HISTORY OF CONGRESS.
1(^
H. OP R.
Internal Taa^es,
Mabcb. K'i.
Davenport, John Dennis, Abiel Foster, Calvin God-
dard, Roger Griswold, William Barry Grove, Seth
Hastings, Archibald Henderson, Wiliam H.Hill, Eben-
ezer Mattoon, Thomas Morris, Thomas Plater, Nathan
Read, John C. Smith, John Smith, of Virginia, John
Stanley, John Stratton, Samuel Tenney, David Tho-
mas, Thomas Tillinghast, John P. Van Ness, Killian
K.*Van Rensselaer, and Peleg Wadsworth.
Nats — Willis Alston, John Archer, John Bacon,
Theodoras Bailey, Phanuel Bishop, Richard Brent,
Robert Brown, William Butler, Matthew Clay, John
Clopton, John Condit, Richard Cutts, Thomas T. Da-
vis, John Dawson, William Dickson, Lucas Elmen-
dorf, Ebenezer Elmer, William Eustis, John Fowler,
Edwin Gray, Andrew Gregg, John A. Hanna, Daniel
Heister, Joseph Heister, William Helms, James Hol-
land, David Holmes, George Jackson, Michael Leib,
John Milledge, Samuel L. Mitchill, Thomas Moore,
Anthony New, Thomas Newton, jr., Joseph H.
Nicholson, John Randolph, jr., John Smilie, John
Smith, of New York, Samuel Smith, Henry Southard,
Richard Stanford, Joseph Stanton, jr., John Stewart,
Philip R. Thompson, Abram Trigg, John Trigg, Joseph
B. Varnum, and Robert Williams.
Mr. Randolph moved to insert in the room of
" pleasurable carriages" — " carriages for the con-
veyance of persons," the terms of the law contem-
plated to be repealed. Carried without a division.
Mr. Dennis moved to strike out *' refined," for
the purpose of inserting " brown" sugar.
He said it had been his purpose substantially to
offer this amendment before. He had frequently
made the attempt, but had as frequently been fore-
closed by the embarrassing motions of Iris oppo-
nents, and their rules respecting order.
Mr. Randolph said he believed there were no
internal duties imposed on brown sugar. Such
an amendment will make the bill perfect nonsense.
Mr. Dana suggested to the gentleman from
Maryland a modification of his motion, so as to
introduce the words, " imported brown sugar" be-
tween " carriages" and " stamped vellum," in the
sixth line.
Mr. S. Smith wished to know whether it was
consistent with tbe order of the House, or with
the decency which one gentleman owes to another,
to ascribe to those who ha I thought it their duty
to make certain motions, motives and intentions
different from those they had avowed ? He said
he was uiiwilliog to enter into altercation with
his colleague, or with anybody ; but if gentlemen
do not restrain themselves in their reflections on
us, they will compel us to be as indelicate as them-
selves, and this House will be converted into a
bear-garden.
• Mr. Smilib said, he had not the least dispo-
sition to prevent any motion being made that was
designed to make an impression upon the public
mind. But he was certain he did not transgress
decency in saying that he had never seen such con-
duct displayed in a deliberative assembly — so
many questions introduced to embarrass and dis-
tract the House. Gentlemen, however, calculated
wrongly ref. pec ting the public mind. If he be-
lieved the observations of gentlemen, he should
despair of the Republic. He entertained, however,
little fear. If gentlemen sincerely believe our
measures subversive of (he public happiBc^< \t
did not blame them for their coDduct. It i- ii .
duty to act as they do. But he could not fjc>r
one remark: Who laid these taxes? K^nzi
salt tax, gentlemen took pains to convince Si'jr
it will not be improper to reduce this tax. M- i
said he was no friend to the tax on salt; b£i
it did not form a part of the branch of t£!era
revenues, he thought it improper in this piace^
take any notice of it. There was no district i
the United States more affected by the ux gssl:
or less by that on carriages, than the distnc: j
represented. But the people in that district c£
siaer the tax upon carriages as a part of a pc*?
cious system, and will cheerfully bear all tbe w^
ent duties upon imported articles, that thiscNiix
system may be abolished, and they will fed :k
in doing what we have done, we have dsa? i-
we could do.
Mr. Dennis. — I may perhaps have expressed s'
impressions of the raotiv&s of my colleague L'
strongly. I did however think that I had bpi:
treated injuriously, and that I had been depnTc^
of the right to make a motion which 1 ik:i;*:
I possessed.
With respect to the popularity alleged Dbr in-
tended to be derived from these little m^CH^l
am ready to acknowledge my object i& tu^iii
popularity ; but it is that kind of popubiritv tk\
arises from measures calculated to benefit cii? :i-
tion. With this object in view, I believe iLri-
ternal taxes ought to be retained, and thedc:;
on imports diminished.
But while gentlemen are chargine oi t;~
aiming at popularity, are they indifiereat :: .
themselves i Has not this report of the ComBr-
tee of Ways and Means been three months is u-
making, and when made is it not blazoned ni
certain print in a type three times as laigeasar.
other of^our proceedings are printed in ? Id: z7
know why there is this distinction in the trpcc-
less the object of gentlemen be popularity.
Mr. Nicholson asked if it were in order, orwk'^
er a member had any right to talk a boat the ccfr
duct of a particular printer.
Mr. Dennis observed, that he would mak« :
addition to bis preceding remarks, as he hat3>
finished when his colleague interrupted him/
Mr. S. Smi^h said, he did not think Lisco^icar-c
correct in the information he had given the Hcs^
He did not himself recollect that he had atct.*:
his intention to renew this motion. Nor diJ '
know that it was his duty to omit doing^ wkai *-■'
thought right, though it might interfere wiu^
colleague's popularity. He may distinctly m^
up each of these points ; but Mr. S. said hf t>
never seen this mode pursued of jumbling in'Z
together. As to the popularity which the grzi^
man courts, he would inform him that be z^
voted for the duty on salt, on sugar, and al3«s
all the other dutied articles, and yet he had a^."^:
lost popularity. He had always thought the ^><
way to get popularity was to act right.
Mr. Jackson wished, in order to save time,c^-
tlemen would agree to take a question upo£ 2 ■
the articles at once.
1045
HISTORY OF CONGRESS.
1046
March, 1802.
Internal Taxes,
H. opR.
Mr. T. Morris said, in that case he should call
for a division.
Mr. Randolph moved the previous question.
He said that whenever he perceived a question
brought forward to vex, to rerjird, and embarrass
the transaction of business, he should deem it
proper to require the previous question. Gentle-
men may persist in calling the yeas and nays;
3ut, on a^s many such questions as they choose to
nove^ he said he would call for the previous
question.
The yeas and nays were then taken on the
previous question, viz. shall the main question, to
insert, after '* stamped vellum, parchment and pa-
per," the words "the duties on imported brown
iugar," be now put? and lost — yeas 25, nays 51,
ks follows :
Yeas — Manasseh Cutler, Samuel W. Dana, John
Oennifl, Calvin Goddard, Roger Griswold, William
3arry Grove, Joseph Hemphill, Archibald Henderson,
A^illiam H. Hill, Thomas Lowndes, Ebenezer Mat<
oon, Thomas Moore, Thomas Morris, Joseph Pierce,
rhomas Plater, Nathan Reed, Henry Southard, John
Stanley, John Stratton, Benjamin Tallmadge, George
3. Upham, Joseph B. Varnum, Peleg Wadsworth,
[lemuel Williams, and Robert Williams.
Nats — Willis Alston, John Archer, John Bacon,
rheodorus Bailey, Phanuel Bishop, Richard Brent^
iobert Brown, William Butler, Samuel J. Cabell, Tho-
naa Claiborne, Matthew Clay, John Clopion, John Con-
lit, Richard Cutts, Thomas T. Davis, John Dawson,
A^illiam Dickson, Lucas Elmendorf, Ebenezer Elmer,
iVilliam Eustis, John Fowler, Edwin Gray, Andrew
jrrcgg, John A. Hanna, Daniel Heister, Joseph Heister,
William Helms, James Holland, David Holmes, George
ackson, William Jones, Midiael Leib, John Milledge,
Samuel L. Mitchill, Anthony New, Thomas Newton,
r., Joseph H. Nicholson, John Randolph, jr., John
^milie, John Smith, of New York, John Smith, of
/'irginia, Josiah Smith, Samuel Smith, Richard Stan-
6rd, Joseph Stanton, jr., John Stewart, David Thomas,
'hilip R. Thompson, Abram Trigg, John Trigg, and
ohn P. Van Ness.
Mr. T. Morris moved to insert the words
duties on imported coffee;'' which motion the
Speaker declared out of order.
A call was then made, for the question to en-
gross the bill, in order to its being read a third
ime: On which call,
Mr. Speaker declared that, in <his opinion, it
vas not in order to engross the bill, until the main
[uestion on the mption on which the previous ques-
ion had been called for and taken, should be put
ind decided by the House; and that it was tar-
her tha opinion of the Chair, it was not in order
o call for. or put the main question on any motion
he same day on which the previous question
>n such motion was called for, and decided in the
legative, by the House.
Whereupon, an appeal was demanded from the
lecision of the Chair ; when, an adjournment was
called for, and carried.
Friday, March 19.
A memorial of the Washington Building Com-
)any was presented to the House and read^ pray-
ing that an act of Congress may pass to incorpo-
rate the said company, to encourage and promote
the erecting, building, finishing, and purchasing
dwelling-houses, and other buildings, m the city
of Washington.
Ordered^ That the said memorial be referred
to the committee appointed on the eighth of De-
cember last, to inquire whether any, and, if any,
whatj alterations or amendments may be neces-
sary m the existing; government and laws of the
District of Columbia.
Mr. Samuel Smith, from the Committee of
Commerce and Manufactures, to whom was re-
fered, on the twenty-seventh of January last and
the seventeenth instant, the memorials of the Phi-
ladelphia Chamber of Commerce, and of sundry
inhabitants of the town of Newcastle and its vi-
cinity, and of other citizens of the State of Dela-
ware, and to whom was also referred, on the elev-
enth instant, a motion " for the appropriation of
dollars, for the erection and repair of piers in
the river Delaware," made a report thereon ;
which was read, and ordered to be committed to
a Committee of the Whole House on Monday
next.
Mr. S., from the same committee, presented a
bill relative to public piers in the river Delaware;
which was read twice, and committed to the Com-
mittee of the Whole House last appointed.
Mr. Southard, from the committee appointed
on the tenth of December last, presented a bill
further to alter and establish certain post roads;
which was read twice, and committed to a Com-
mittee of the Whole House on Monday next.
Mr. Davenport, from the Committee of Revi-
sal and Unfinished Business, to whom it was re-
ferred, to examine and report such laws of the
United States as have expired, or are now expir-
ing, made a further report, in part ; which was
read and considered : whereupon.
Resolved^ That the Committee of Revisal and
Unfinished Business be instructed to report a bill
fixing the compensation of the officers oi the Sen-
ate and House of Representatives.
INTERNAL TAXES.
The House resumed the consideration of the
bill to repeal the internal revenues. Whereupon,
the appeal from the decision of the Chair, de-
manded yesterday, and suspended by the adjourn-
ment of the House, was renewed.
Mr. L. R. Morris called for the yeas and nays.
A division of the question on the said appeal,
was called for by Mr. Bayard.
And on the question, "is the first part of the
decision of the Chair in order, to wit: *That in
the opinion of the Speaker, it was not in order to
engross the bill, until the main question on the
motion on which the previous question had been
called for and taken, should be put and decided by
the House ?"
It was resolved in the affirmative — yeas 48, naya
29, as follows.
Yeas — James A. Bayard, Robert Brown » Thoina«
Claiborne, Manasseh Cutler, Samuel W. Dana, John
Davenport, Thomas T. Davis, John Dennis, William
1047
HISTORY OF CONGRESS.
104-
H. opR.
Internal Taxes.
Mabcb. l^J2.
Dickson, Ebenezer Elmer, Abiel Foster, Calvin God-
dard, Andrew Gregg, Roger Griswold, William Barry
Grove, John A. Hanna, Seth Hastings, Daniel Heis-
ter, Joseph Heister, Joseph Hemphill, Archibald Hen-
derson, William H. Hill, David Holmes, William Jones,
Thomas Lowndes, Ebenezer Mattoon, Samuel L. Mitch-
ill, Thomas Morris, Joseph H. Nicholson, Joseph Pierce,
Thomas Plater, Nathan Read, John Smilie, John Cot-
ton Smith, John Smith, of New York, Richard Stan-
ford, John Stanley, John Stratton, Benjamin Tall-
madge, Samuel Tcnney, Thomas Tillinghast, George
B. Upham, John P. Van Ness, Killian K. Van Rensse-
laer, Peleg Wadsworth, Lemuel Williams, Robert Wil-
Gams, and Henry Woods.
Nats — ^John Archer, John Bacon, Theodorus Bailey,
Phanuel Bishop, William Butler, Samuel J. Cabell,
Mathew Clay, John Clopton, John Dawson, Lucas £1-
mendorf, William Eustis, John Fowler, Edwin Gray,
William Helms, James Holland, Benjamin Huger,
George Jackson, Michael Leib, Thomas Moore, An-
thony New, Thomas Newton, jr., John Randolph jr.,
John Stewart, Joseph Stanton, jr., Philip R. Thompson,
Abram Trigg, John Trigg, Philip Van Cortlandt, and
Joseph B. Varnum.
Oa the question, " is the second part of the de-
cision of the Chair in order, to wit: ^and that it
was further the opinion of the Chair, it was not
in order to call for or put the main question on any
motion the same day on which the previous ques-
tion on such motion was called for and decided in
the negative, by the House?"
It was resolved in the affirmative — yeas 69, nays
4. as follows.
Ybas — John Archer, Theodorus Bailey, James A.
Bayard, Phanuel Bishop, Robert Brown, Samuel J.
Cabell, Thomas Claiborne, Matthew Clay, John Clop-
ton, Manasseh Cutler, Samuel W. Dana, John Dav-
enport, Thomas T. Davis, John Dennis, William Dick-
son, Lucas Elmendorf, Ebenezer Elmer, William Eus-
tis, John Fowler, Calvin Goddard, Edwin Gray, An-
drew Gregg, Roger Griswold, William Barry Grove,
John A. Hanna, Seth Hastings, Daniel Heister, Jo-
seph Heister, William Helms, Joseph Hemphill, Archi-
bald Henderson, William H. Hill, David Holmes, Ben-
jamin Huger, William Jones, Michael Leib, Thomas
Lowndes, EJsenezer Mattoon, Samuel L. Mitchill,
Thomas, Moore, Thomas Morris, Anthony New, Thom-
as, Newton, jr., Joseph Pierce, Thomas Plater, John
Randolph, jr., Nathan Read, John Smilie, John Cotton
Smith, John Smith, of New York, Richard Stanford,
John Stanley, Joseph Stanton, jr., John Stratton, Ben-
jamin Tallmadge, Samuel Tenney, Thomas Tilling-
hast, Philip R. Thompson, Abram Trigg, John Trigg,
George B. Upham, Philip Van Cortlandt, John P. Van
Ness, Joseph B. Varnum, KilHan K. Van Rensselaer,
Peleg Wadsworth, Lemuel WUliams, Robert Williams,
and Henry Woods.
Nats — ^John Bacon, William Butler, John Dawson,
and George Jackson.
Mr. Dennis moved to insert after ^ paper," in
the sixth line, " duties on imported brown sugar."
Mr. Dana said it was not his object at this time
to enter into a comparative view of the internal
and external duties, but to state, that if it was the
sense of the House that the duties on imported ar-
ticles should be reduced, the regular mode was first
to abolish, and then reduce them. This is the reg-
ular mode, because by pursuing it, one law will
contain the whole rate of duties. This roodeb.
been pursued in revenue acts heretofore passei
[He here quoted the provisions of several acu
which he stated to be to this effect.] He kcti
the title of the present bill was to repeal tlie iii:^^
nal taxes; but the title being the last partcf U:
bill agreed to, may be easily- altered and ace»>
modated to its contents. This course, Mr. Diu
thought the most consistent, as this may be ciie
only revenue bill brought before the House dcnv
the session, and may present the onlf opportiE&.n
of contrasting the external and internal duties
Mr. Holland. — I am opposed to thepropoain
made by the honorable gentleman frooi MaryhLC.
as I conceive it incompatible w^ith the priar'pkt
of the bill ; were this a bill to regulate daiies x
foreign imposts, a proposition to insert or strii
out brown sugar might be proper, as it woald !:.•:
be proper to insert or strike out salt, coffee, do;
has been so often attempted, with a view, as 1 »8>
pose, to obstruct or embarrass the passage of il
Gentlemen on the other side of the House \a'*
been told by the patronizers of this bill that i: ai
bill to repeal the internal taxes. This beio^ ibe
sole object of the bill, gentlemen cannot s6p;«s«
that the advocates of it would suffer anytks; c
be attached to it, that would have a tendfacr lo
protract or prevent its passage. As I Ti€7 m
proposition to insert imported brown sugar, aikiv-
m^ no relation to the repealing^ th« whole srsts
of internal tax-laws, and as I consider the pro]^
sition calculated to defeat the passage of the'ti
I am opposed to it. I am the more decided! r :>
posed to it, because the gentleman on the t^
side of the House have uniformly declared ik:
opposition to the repeal of the internal tax-hvs.
and have at all times attempted to procrasdsi'^
the passage of this bill ; this proposition bciazc:':
other evidence of their intentions, excites me va
more strongly to oppose it.
Mr. Speaker, I have long wished to see thetiv
that Government would have it in its powertode-
pense with these taxes, particularly^ with exci:«^
and stamp duties, because I think them hostile ::
the genius of our Government. I kno-w that Gcr-
ernment has a Constitutional ri^ht to impk.^
these taxes. But let it be reinembered, that at ik
time the Constitution was formed and ad(^:e-
both by the Federal and State Conventions, it vz
then, understood, that this power w^s only to b£
exercised in cases of the greatest necessityJ
It was then said by those who advocated iia
power to be given to the General Goveroma:
that nothing but extreme necessity would era
influence the General Government to lay exetsi
or levy stamp duties; and that the necessity woa^
not probably ever exist. Calculations were t^
made, and confidently asserted, that three and a
half or four millions of dollars of an annual rerv-
nue would be quite sufficient to discharge csr
national obligations, and answer all the demai^
of the Federal Government; and that a duty.^
imports of five per cent, would afford this reveasf
Under these impressions the Constitution v^*
adopted ; and I yet believe, had the Governnier:
observed a proper and sound economy, in ber firs
L049
HISTORY OF CONGRESS.
1050
^ARCH, 180^
IfUemaL Taxes.
H. ofR.
idvances, that there would not have been a neces-
ity to have resorted to those taxes. Bat, contrary
o the opinioDs entertaiaed when the CoDstitution
¥as formed, and without any occurrence that ren-
lered it necessary, soon, very soon, indeed, Gov-
Tiiment proceeded to lay internal taxes; and,
without any regard to the prepossessions or preju-
lices of the great bulk of her citizens, she resorted
o the most odious of all taxes — excise and stamps
—the names alone carrying an odium that cannot
\e wiped off during, the existence of the present
generation. Our lathers from Europe, perhaps
rom the abuse in the collection of those kinds of
axes, or from whatever other cause, held those
axes as obnoxious, and will continue to consider
hem as odious, in whatever mode you place them,
rhe odium extends into the domestic retirement
)f the husbandman, and it is in vain that gentle-
nen sav that the citizens are contented with those
axes : let an inquiry be made of the honest labor-
Dg husbandman throughout this extended coun-
ry. Let gentlemen travel and make the inquiry,
md it will be found that nothing short of a love
>f their country, and a desire of peace, have caused
he people to be passive under their operation, and
hey look forward with anxious hope for the lime
hat the^ are to be relieved from them. The time,
L hope, IS now come, that their expectations are
o be realized.
No part of the country consumes a greater
luantity of salt, in proportion to their other con-
sumption of foreign articles, than that part of the
country which I have the honor to represent. It
s a necessary of life ; all descriptions of people
uust have it. Notwithstanding, if the Govern-
ment must have the money drawn from them by
>xcise and stamps, and haa they their choice, they
iiold those taxes in such abhorrence that they
(vould tell you to lay the excess upon salt, or upon
iny other necessary of life, and put down those
Dbnoxious taxes. Such is the disposition of the
buman heart that you had better take one hun-
ired cents from them in the way they approve
than to take a single cent from them contrary to
their approbation. These are my impressions of
the opinion of my constituents, and notwithstand-
ing tne declaration of the honorable gentleman
from South Carolina, (Mr. Huqer,) respecting
the opinions of his constituents, I think them the
same with those of mine. I live near South Car-
olina, and know their localities, prepossessions,
and habits, and do not hesitate in saying that the
?;reat mass of the people of that State would pre-
er a discontinuance ofr those taxes to any partial
reduction of the duties on salt, brown sugar, or
coffee.
The gentleman has informed us that his constit-
uents consunae a vast quantity of imports, and that
the hiffh duties bear hard upon them. I have no
doubt but that the citizens on the seacoast,and in
the gentleman's immediate district, live fast.
Some of them have the character of living fast,
and they are able to indulge themselves in luxu-
ries. But the major part of the citizens of that
State live in much the same manner as the citizens
of North Carolina, or as those of other States; and
I am confident would be highly gratified by a total
abolition of the internal taxes.
The same gentleman has supposed that mem-
bers on this side of the House, to procure their
elections, have committed themselves to their con-
stituents for the repeal of those taxes. I know
not by what means that gentleman has procured
bis seat. It may be by his promising to his con-
stituents to have the duties on salt, sugar, and
coffee, taken off, and from this circumstance may
arise his suspicion of us, and his great anxiety to
comply with his promise.
But I will candidly say, so far as comes within
my knowledge, no idea existed that Government
could do witnout those taxes. The citizens ex-
pected some more favorable modification, so as to
enable small distilleries (that at present are entire-
ly cut up) to go on — distilleries that were carried
on not from the profit arising from the liquor, but
for the benefit of live stock, that, to the great in-
jury of the country at large, cannot work under
the present law, which is a much greater number
than those that do work — for those that do distil
are persons of large capital ; persons of small cap-
ital not being able to comply with the requisitions
of the law. Arrangements of this kind were ex-
pected ; but the people at large, as well as my-
self, thought that it would take some time, spent
in economy, after such a scene of extravagance,
before the taxes could be dispensed with. I had
no conception that so great saving could be made
by lopping off ofiicers. I had no knowledge of
their enormous number; and I am now happy to
find that greater retrenchments than were expect-
ed can be made, and am hishly pleased that Gov-
ernment can go on without those taxes. They have
been odious to the people, partial in their opera-
tion, and unproductive in the result; and if you
charge to their account the evils they have pro-
duced, they have brought little money into your
Treasury : they are odious and impolitic, for they
hold out a premium for perjury. They operate on
the moral part of your citizens, by reason of false
returns made by those that are regardless of their
oaths. They are unproductive, from the expense
of collection, the host of officers that must be en-
gaged in the collection, and from the evils they
will for ever produce. Evils of this kind are not
casually attached to other kinds of taxation ; du*
ties on salt, sugar, and coffee may be oppressive,
but they are not odious, and thev are productive^
few persons being engaged in collection.
But it is said by a gentleman from Connecticut
(Mr. Griswolo) that we cannot do without the
revenue arising from internal taxes, and that the
people are in the habit of paying them, and that it
would be dangerous to discharge them from what
they have been accustomed to. It is true that the
citizens have been in the harness, and drove on
until they have no idea of resistance. But I wish
to see the harness thrown off them. I wish to see
them restored to that state of freedom that was
contemplated at the time of our entrance into the
Federal Government; and that they should not
be fettered with taxes, that were only intended as
the last resort; that were only intended in cases
1051
HISTORY OF CONGRESS.
11
H.opR.
Internal Taxes.
Mabce.
of the first necessity ; atid whatever may be the
consequence of this emancipation, if it throws us
in the back-ground, I shall be contented under a
belief that it will not be in the power of any suc-
ceeding Administration to resort to excises for
twenty years to come, unless there is the most ur-
gent necessity. That they will not dare to do it
upon imaginary or pretended necessity. The ne-
cessity must exist, and not till then I wish to see
those taxes resorted to. The honorable gentleman
tells us that he has no reliance on the heads of
departments, and that more money will be neces-
sary than i$ required by them.
I believe that it is the first time that the heads
of departments in any Qovernment have been sus-
pected of not asking money enough for the admin-
istration of Government. It is the fiirst time that
the Administration of the American Government
has been liable to this charge; and had the former
Administration continued, they most assuredly
would not have been chargeable with this offence.
And permit me to say, that a much larger sum
would have been necessary. But the Administra-
tion has changed, and with it a change of mea-
sures; the enormous sums of thirteen or fourteen
millions of dollars per annum are no longer con-
sumed. But does tne gentleman suppose that his
opinion should be substituted for the calculations
made by our heads of departments: that the Le-
gislature ought to adopt his suggestions in lieu of
official documents? This, to be sure, would be
treating that gentleman with a high degree of
complaisance and respect. The honorable gentle-
man has also informed us that owing to the great
industry of the late Administration there are two
or three millions of dollars in the Treasury, and by
this means Government may go on a year or two.
I am willing to admit that the late Administration
has been exceedingly industrious in drawing mo-
ney from the people, and that their invention and
industry have extended in every direction and to
every object, and that nothing from which money
could be drawn was left untried or untouched.
But I think in these respects they have drove on
too fast, and drawn from the people as much
money in six years as ought to have been taken
in twelve years. Indeed I believe that by the
time the direct tax is paid, that Government will
have received all the money that is in circulation.
Some time will be necessary to enable the people
to obtain a fresh supply.
I also think it bad policy in Government to
wrest from the people all their circulating cash.
I think it better for the Government that the Trea-
sury should be poor and the people rich, than that
the Treasury should be rich ana the people poor.
If the people are left with money in their hands,
it adds to the means of their wealth, and when the
necessity of Government calls for aid, that will be
^iven b^ her virtuous citizens; but it is otherwise
if the Treasury is rich and the people poor. I
therefore wish to see a rich and independent peo-
ple, and a poor Treasury, in preference to an indi-
gent people and a rich Treasury.
Much has been said respecting an expression
that dropt from a gentleman from Massachusetts,
who I trust is a friend to this bill ; the exp
was, that the taxes were already half repea.ti
has been tortured to mean that the rrieDi> 2:
bill are under Executive influence, and briA
of an indication in his Message in farcr
repeal the report is an Executive measure. S:
not only the Executive, but the correspoDd!L!r^
sense of the most enlightened citizens of thb^.
try, has already more than half repealed thc^..
aiid had the sound understanding of the :?
been consulted, those taxes would noiharr^
laid ; and, as we now know from the be>t»..>
ity that Government can go on without ihtrir
should be unmindful of our duty and oftae^ '
of the nation were we not to repeal them.
An honorable gentleman from Maryiao^l \
Dennis,) who is the author of the propfoii^:
insert imported brown sugar, annoaoced t: >
House that his object in this and in all m-pt
positions that he has made on this occaslOQ.i':^^
ularity. This being his object he is entitled
the benefits that he can derive from them. Ib^
not that gentleman's constituents, but it a<i'
to me that they will understand the histtn .
measures, and if they do, I shall notenTv:^'-^
the popularity that he shall take by his a^Hr^
His constituents will discover, that if aofst^'^
cies of internal taxes is retained, that ih«>>s^-
is preserved ; and would they, for a redac^i^ -
the duties on salt, sugar, and coffee, agre^ii-
up four hundred and sixty lazy drones. tba'c:-
have a salary equal to the amount of their %^'
tion ? I think their constituents would ri:>
more advisable to discontinue the system oi\"
nal taxes, and thereby compel those idlers kj*
for their support, as it is not to be presucje/s
they are persons of opulence. The bentS; •
community would draw from their honfsia
would be more than the amount of their collecii^^
for I take it that Government is benefiied iir
portion to the increased productions amicfi''
the labor of her citizens. It is therefore iap^
and odious to increase or continue usele>ic^'
I therefore consider this amendment, with a.-
others proposed by the gentlemen on iheotbt-'^
of the House, as calculated to obstruct or pff^"*
the passage of the bill, and as I am fully imp''''-
with a belief that the oill ought to pass, box' '
against the proposition to insert imported br.i^
suffar.
Mr. Dennis said he only wished a fair dec><'^-
on his motion, and had intended to leareit^'-
fate, without a single comment
His proposition had, hc^ever, been from ^
to time suspended; sometimes by the ^^ ■
question, sometimes by being divided, aod tp'
peals from the Chair. He wished noi to pn>'^
delay, but he should continue to persevereiJ •
right to have the question fairly slated to twF
lie, until that object be attained. After the <!fB'
arising from appeals from the Chair, aoddiTi^|^
of motions, dbc. and the long speech of the ^^j^*^
roan yesterday, he hoped the majority wooji-
longer complain of procrastination. He ^'y\
mean to reply to the whole of the obscrriDjJ^^'
the gentleman last up, for they weregeoerauf'*
1053
HISTORY OF CONGRESS.
1054
March. 1802.
Interned Taxes,
H.ofR.
of order, and much more applicable to the'whole
bill on its final passage, than to the motion before
the House.
That gentleman, said Mr. D., has told us that
the object of this bill is to repeal the internal taxes.
This, I suppose, we should nave discovered with-
out the aid of the gentleman's sagacity. On the
contrary, it is my object to retain the tax on car-
riages, on refined sugar, on retailers, and on sales
at auction, because they are applicable to luxuries
used by the ri6h; and to reduce the tax on brown
sugar, on coffee, bohea tea and salt, or on some of
them, because they may be considered as neces-
saries of life. We are told this is not the proper
place to make the comparison, and the gentleman
(Mr. Holland) tells us, after this bill is passed,
he will co-operate with us in reducing tne tax
00 brown sugar. That gentleman, sir, must know
that we cannot dispense with these taxes, and
those on sugar ana coffee likewise; and that
when this bill shall have passed, it will be too late
to attempt the reduction he speaks of. This is
then the only time and place, when and where we
can take the comparison, and make our election,
whether we will repeal the tax on carriages, on
retailers, on sales at auction, and loaf sugar, or
reduce tnem on brown sugar, tea, and other articles
beforementioned.
But the gentleman from North Carolina (Mr.
Holland) says the very name of excise is odious
to a free people, and that it has been found so in
practice. When he proceeds to prove his asser-
tion, he appeals solely to the tax on stills. With-
out inquiring into the truth of 'the assertion as
applicable to stills, Mr. D. said he would remind
him the first motion he made on this subject was,
to distinguish between the tax on stills and other
internal revenues. Mr. D. said he was willing
now^ to repeal the tax on stills ; and if they would
confine themselves to that tax, he would co-ope-
rate in the measure. He conceived the tax on
stills as standing on different ground from the tax
on carriages, retailers, and sales at auction, and
on refined sugar, precisely because it was very
troublesome in its collection, and requires a great
many officers to collect it. This gentleman and
his coadjutors are very anxious to repeal these taxes,
they tell us, because they wish to set clear of a
host of officers. They cannot surely expect this
to delude the public.
Take off the tax on stills, and they may dis-
charge all these officers, and still collect the tax
on the residue of these duties at a lower rate than
we collect the impost. They may devolve on the
deputy postmasters in some cases, and on the col-
lectors of the customs in others, the collection of
these taxes ; and thus, sir, all this noise about a
host of officers is hushed into silence.
A gentleman from New Jersey (Mr. Southard)
supposes if we devolve the collection of the tax
on carriages on the deputy postmasters, it will be-
come burdensome to make the entries — and asks,
with a great deal of emphasis, What ! will you
compel your citizens to travel forty or fifty miles
to en ter a carriage ? Now let us see how fa r these
assertions are supported by the fact. I know of
no county, where there is, at present, more than
one collector of (his tax ; but I know it is common
to find three or four, and sometimes half a dozen
deputy postmasters in a county ; so that the dis-
tance to be travelled, to make these entries, would
be diminished rather than augmented ; and yet,
i»ir, this is the kind of reasoning by which we are
to be persuaded it is best to release carriages, and
continue the taxes on the necessaries of life.
But, says the gentleman from North Carolina,
the people wish to be released from taxes ; ask them
if tney do not. I have no doubt it is at all times
pleasing to be released from taxes. But the ques-
tion is not, in the abstract, whether they wish to
be relieved from taxes ; nor is this the fair way of
stating the question. No. sir, ask the American
people these questions; wnether if we cannot re-
peal both the internal revenues, and reduce the
internal duties, they would prefer to continue the
tax on carriages, in order that they may reduce
the tax on salt ; whether they had rather take off
the tax on loaf, or reduce it on brown sugar;
whether they will continue to tax retailers of
spirituous liquors, in order that they may reduce
the tax on coffee; whether they would continue
to tax sales at auction, to release the duty on bohea
tea: and I will vouch for them they will answer,
continue the duties on carriages, on loaf sugar,
sales at auction, and retailers, (for these relate to
mere luxuries,) and take off the taxes on the other
articles, which are necessaries of life.
On yesterday it was intimated I was seeking
after popularity, and that this was the object of
my motion. This sentiment has been reiterated
by the gentleman from North Carolina. Without
inquiring what is the object of that gentleman
and the patrons of this bill, I will candidly con-
fess I do expect popularity from this measure.
Popularity, however, is but a secondary consider-
ation, and as such I shall always be happy to en-
joy it. My duty I conceive is, whenever a ques-
tion presents itself, first to consider what system
of conduct will be most conducive to the public
interest, and secondly^ what will best comport with
the public will ; and if my views of public interest
correspond with the national voice, I shall always
be happy in the approbation of my fellow citizens.
I believe this to be case in the present instance,
and therefore I expect- to derive popularity from
these measures. But at the same time, I will tell
that gentleman, that the popularity I aim at is
popularity for tnat political party with which I
am associated, and on the prevalence of whose
principles rests, in my opinion, the prosperity of
this country, and not my own personal popularity.
Permit me to tell that gentleman, too, that a seat on
this floor is not of so much importance to me as
he may imagine, and perhaps not of so much con-
sequence as he may aeem it to himself; and that
it is at least questionable whether I shall again so-
licit the representatve character. I did not in-
tend, as I before intimated, to pursue that gentle-
man through his desultory harangue, for the rea-
sons before assigned, and will barely repeat that
I will ajrree to repeal the tax on stills, but that I
think, iTany revenue can be spared, it is much
1059
HISTORY OF CONaRESS.
1(^
H. OF R.
Internal Taxes,
MaBCB.>:
Sales at auction. — This tax falls on those who,
from necessity, or from a desire to raise money to
meet particular objects, send their good& for pub-
lic sale ; or, it is paid by persons about to remove
from one part of the country to another, and sell
their little all to enable them to remove with their
families. I have never yet heard any reason of
force to show why a man who sells his goods at
public sale should pay a duty on sales not paid by
those who sell at private sale. This tax is still
more unequal in its operation than that on licenses.
Maryland paid, in 1800, for the tax on auctions,
six thousand seven hundred and thirty-four dol-
lars; Virginia, four thousand seven hundred and
thirty-one dollars, and Connecticut only one hun-
dred and forty-two dollars. Can it be just, that
Connecticut, naving nearly as many inhabitants,
shall pay but one hundred dollars of a tax, where
Maryland contributes to the same six thousand
seven hundred and thirty-four dollars? It may
operate with gentlemen from that State as a good
reason for retaining the tax, but certainly ought
to have had a contrary effect on my colleague,
(Mr. Dennis.) The great inequality of the tax
on auctions will appear more striking when gen-
tlemen turn to the document, and see that Mary-
land actually paid more than eleven States, to wit:
New Hampshire, Rhode Island. Connecticut, Ver-
mont, New Jersey, Delaware, Kentucky, Tennes-
-see, North Carolina, Georgia, and South Carolina;
•those States will have fifty-eight members on this
floor, and paid, in 1800, but five thousand six hun-
dred and twenty-six dollars on the tax on sales at
auctions, when Maryland paid six thousand seven
hundred and thirty-four dollars.
Carriages for conveyance of persons. — This tax
has been considered by many as a direct tax un-
der the Constitution. I did not think so on its
EBssage. and voted for it, but now I cannot but
ave doubts on the subject, when I recollect the
operation of the late direct tax, and the inequality
of the carriage tax, as it respects the States. Wag-
ons, on similar principles, might be taxed, and if
they were, the New England Slates would pay
no part of the tax. Would this be just? Mary-
land paid, of the duty on carriages, eight thousand
six hundred and eighty- three dollars; Connecticut
only four thousand nve hundred and sixty-four
dollars, being little more than one-half thereof,
and the seven States of New Hampshire, Rhode
Island, Vermont, Kentucky, Tennessee. South
Carolina, and Georgia, pay together only three
hundred and one dollars more than Maryland.
The tax on carriages falls particularly hard on the
district I represent. In the city of Baltimore more
than one hundred carriages for hire parade the
streets, besides a large number employed from that
city on the roads. The owners earn an honest
livelihood thereby; a tax on their carriage** for
conveyance of persons appears to me as unjust as
a tax would be on carriages for conveyance of
goods. Sir, this tax does not fall, in my district,
on the luxurious alone. I am inclined to believe
that more than two-thirds of the tax is paid by
citizens keeping carriages for hire, nearly the
whole of the other third by oar citizens for their |
convenience. I am persuaded that my dst-
alone paid more, in 1800, to the carriage ui ^
was paid by Vermont, Kentucky, aod Teii&&«
and perhaps Georgia together. Cao I (kair^
this circumstance J ever give mycooseDlioc:-
tinue a tax every way so unequal?
I will be told, that, taking the wliole focJD
jects proposed to be struck out togethef.tcr
licenses, auctions, carriages, aod refined s;
that the result would be more equal. Sir.lv
examined that subject also, and barefoasii'
result nearly similar. - The gross amooDtcc^k',
on those four objects is two hundred aDd fiftr-u
thousand eight hundred and ninety dollars
this sum Maryland paid thirty thoustDdaiHi^r
dollars, one eighth of the whole, and neam it
hie the fair proportion of that State. Cood6ci*.
paid but ten thousand five hundred aod \nr
one dollars, being little more than ooe-ihirdc! -
paid by Maryland. I will not say tliai ih.: i
good cause for gentlemen from that Slate U'>
for the continuance of those taxes, bull wl:i
that it would be a bad reason for mf ciAi^'-
(Mr. Dennis) to offer for moving to smif as
out of the repealing law. But, sirjtheift^ui]
and. of course, injustice, will be moitckirif
shown, when it is known that Marjbil^
nearly two thousand dollars more of u^-^
taxes than were paid by the serea iopirc
States of New Hampshire, Vermoot, W'^
olina, South Carolina, Georgia, KeotttcHiK
Tennessee. Those seven States will h^Tti^
the next election, in this House, forty-tvoe^
hers, and have paid only twenty-three tSiss*-
three hundred and four dollars, when Min-^-
paid thirty thousand and sixty dollars, ific ^'
have nine Representatives. This musibetf/
the repeal ought to be made, or oq sooe 'set
occasion those States may think it cooveibe:^
increase those taxes of which they paf '^ ^
little.
But, Mr. Speaker, we have been told tliaiix^
the whole objects of internal taxation ifi!^ "^
view, they will be found nearljr equal as ^i^
the States. I have also, examiued ibai j^^r
and have found the inequality as it re^pK^-
State I have the honor to represent^ cc&ts**
Maryland paid, in 1800. of the amount ics*
received into the Treasury, charges and ***
backs deducted for that year, seventy-t^^'^,^
and seven hundred and thirty-five dollars* <^~
necticut paid only twentv-two thousand ji'-
dred and ninety-three dollars, not one-ihijj '^ ■
payment made by Maryland. North u*.-»
paid forty-six thousand four hundred and s<'*
nine dollars, and the whole seven foUoviDf *'
only fifty-nine thousand and ninety-three;^*
to wit : New Hampshire, three thousand oo^*
dred and Torty-nine dollars; Vermont. ooe >^^'
and three hundred and ninety-seven dollars-
Jersey, sixteen thousand one hundred a£i -^
dollars ; Delaware, seven thousand eigbl w>
and thirty-six dollars; Georgia, ^*»^ ^J'^1
dollars ; Tennessee, four thousand nine fli-'^*
and nine dollars; and Connecticut, tve9|^^
thousand six hundred and nioety-thi«e
1061
HISTORY OF CONGRESS.
1062
March. 1802.
Internal Taxes,
H. opR.
Add to those the amount paid by the wealthy and
important State of South Carolina, and it will be
found that one-half the States of the Union paid
less than ten thousand dollars beyond the single
State of Maryland of the whole internal taxes for
the year 1800. Thus you see that New Hamp-
shire, having more than half the inhabitants of
Maryland, and Vermont having nearly half her
numbers, pay scarcely any part of the internal
taxes. Are we, then, to be surprised if those States
which scarcely pay anything — or if Connecticut,
which pays so small a part of the internal taxes —
should be found voting against the repeal 7 Yes,
sir, we ou^ht to be surprised ; the injustice is so
glaring, that the members must, in honor, vote for
the repeal of taxes to which their citizens contri-
bute so little; justice demands it of them, and
they will obey her voice.
The very great inequality of each of those
taxes — of the four conjointly, or of the whole of
the internal duties taken together — will plead my
apology with such of my colleagues as may have
conceived that those taxes ought not to be re-
pealed. Indeed, sir, I cannot bul believe that had
the subject presented itself to the mind of my col-
league (Mr. Dennis) as it has to mine, he would
not have given the opposition he has to the repeal.
I must believe that he will not now vote for the
continuance of taxes which fall so unequally on
his Slate as those do. We have been told that
the subject ought to be considered in a national
f>oint of view, and that those duties are objects of
uxury. To the first, I do not subscribe. I have
always supposed that my duty was to prevent an
inequality of taxes being imposed on the State I
was elected to represent, and carefully to attend to
the interest of my constituents. I have yet to
learn what luxury there is in drinking whiskey ;
nor have I been informed that retailers of liquors
find much luxury in paying for their licenses.
Does the seller at auction find it luxurious to pay
a duty on the amount of his goods sold ? The
owner of an eleeant carriage may feel the luxury
of riding in it ; but I doubt whether the man who
keeps carriages for hire, or the people who keep
chairs to carry their families to church, find mucn
luxury in payine the tax. My colleague j[Mr.
Dennis) will tell us what is the luxury arising
out of the stamp act. It is true that four hundred
officers will be dismissed by the repeal ; but how-
ever I may regret the injury some of my acquain-
tances may suffer, yet I do not believe that their
loss of ofiice will greatly disturb the tranquillity
of the people; and permit me here to remark, that
had the taxes on the licenses, auctions, refined
sugar, and carriages, been continued, it would
have required a great proportion of those four
hundred oflScers to collect them; the cost of which
would have been too great for their amount to
bear. May not the desire of keeping their friends
in pay, be a strong inducement with gentlemen to
retain the taxes? To create offices has been the
favorite system with some gentlemen ; the system
of the Republicans is to lessen their numbers, and
dismiss all that are useless.
Mr. Speaker, it has been said that the revenue
will not be sufficient (without the aid of the in-
ternal duties) to meet the exigencies of our Gov*
ernroent; and yet we have seen those very gen-
tlemen who make use of that argument, voting to
repeal (in addition to the internal taxes) the whole
duty on bohea tea, sugar, coffee, and salt, making
together an amount of more than two millions of
dollars. Had they succeeded, the Government
must have stopped ; it could not have met its en-
gagements. But did they intend to succeed ? No^
sir, if they could have tacked those items to the
bill, they would then have voted, I have no doubt,
against the whole bill, and thus attained their sole
object, to wit: to prevent the repeal of any of the
internal taxes, or any reduction of the duty on
salt, sugar, &«. Can we, sir, spare these taxes^
and meet the wants of Government ? I think we
can. The Secretary of the Treasury reports, and
it is conceded by all, that the revenues were fully
equal to -the expenditures under the existing laws,
at the commencement of the present session ; that
having been the case, i( the present Congress have
already made savings bv a reduction of the army,
and a dismi^isal of useless officers to the amount
of the internal taxes, then certainly the Govern-
ment will be fully competent to meet every de-
mand. Have we done this? I think we have, to
wit;
On the Army Establishment, the difference of ex-
penditure between that repealed and the law
just passed, is, agreeably to the report of the
Secretary of War - - - $500,000
On the Naval Establishment (between
the sum estimated on the meeting of
Congress and that now required) a
saving will be in consequence of a
fall of wages and provisions of - 200,000
On the Judiciary (the law repealed^ - 31,500
On the forts (less than the estimate) - 70j000
Making together
801.500
The nverage annual receipts arising from the
permanent internal taxes, has been declared by
the Committee of Ways and Means (and their
report has been admitted to be correct) to amount
only to $600.000 ; the highest calculation has been
$650,000. This being the fact, we can safely
spare taxes to that amount, having already re-
trenched our expenses above $800,000. We shall
make yet other savings, so as to make the whole,
as I expect, amount nearly to one million of dol-
lars. To save from public expense will be more
pleasing to the people than to raise a similar sum
from them by taxes.
It may be thought by gentlemen who have not
particularly attended to the subject, that we shall
be unprepared to meet the demand against thd
United States lately arranged under the British
Treaty. I do not know the precise amount of th:;
claim stipulated to be paid, but I do know the
sum limited by the late Administration, beyond
which our Minister could not go, and I have not
a doubt of our being prepared to pay that amount.
Gentlemen will turn to page eleven of the Secre-
tary's report, and they will be satisfied. The See-
1063
HISTORY OF CONGRESS.
K^:
H.opR.
Internal Taxes.
MiRCB.
retary says, after statinsr a number of items of
receipts. *• Those several items (exclusively of set-
' eral balances due by individuals, a part of which
* will eventually be received into the Treasury)
' constitute a sum exceeding three million of dol-
' lars, and may for the present be considered as re-
' sources sufficient to meet the demands against the
' United States, which may be eventually payable
* on account of the sixth article of the treaty with
* Great Britain, and of the article of the
* convention with France."
Mr. Speaker, it cannot fail to give pleasure to
our constituents, when they know that we have
met the payment of the interest on the deferred
debt; that we have as much money in the Treas-
ury as was left there by the late Administration ;
that we have discharged, in the course of the
year 1801, of the principal of the public debt, two
million two hunared and twenty-nine thousand
dollars; that we have a fund amounting to three
million of dollars ready to meet the demand under
the British and French Treaties, or to meet any
unforeseen deficiencies of revenue, that we can,
with perfect safety (as it relates to our revenue)
repeal the internal taxes ; and can, notwithstand-
ing appropriate a sum toward the discharge of the
public debt, such as will, in eight years, pay thirty-
two million of dollars, and in fifteen, completely
discharge the whole debt. My colleague (Mr.
Dennis) boasted that in nine years, four million
of the debt had been paid, the same sum will, in
future, be paid off annually, and that without
layine any new tax ; on the contrary. I am of opin-
ion, that we may soon lessen the duties on some
of those articles that gentlemen wished to clog
this bill with.
Mr. Speaker, during the recess of Congress, the
President by reducing the marine corps trom
twelve to four hundred men ; bv an excellent ar-
rangement, as related to our debt to Algiers, by
the recalling of unnecessary Ministers at foreign
Courts ; by the dismissal of useless officers, by an
economical arrangement of the Q,uartermaster's
department of the Army, and by other judicious
measures, did save to the United States an an-
nual expenditure of nearly four hundred thous-
and dollars. The President has recommended
the lessening other expenses, and Congress have
adopted, and will adopt, such as will, I expect,
amount to one million of dollars. Let us there-
fore give his honest endeavors to save the public
money, and to relieve the burdens of the people,
our. warm support and assistance.
Mr. Speaker, seeing that the internal taxes taken
collectively, or each tax taken separately, are un-
equal in their operations as it relates to Maryland,
and particularly so as it relates to my district —
teeing that their collection requires four hundred
officers, and that the pay of those officers con-
sumes a large proportion of the money collected
from the people — seeing by the saving made from
our usual annual expenditure that we can safely
spare the amount oi those taxes; and believing
tnat the people will the more readily submit to
pay taxes that are necessary when they know that
they will be relieved therefrom whenever the exi-
gency shall cease to exist; I shall concli
expressing a wish, that the bill to repeal h-.:-
ternal taxes may pass.
Mr. Dana said he could have wisbeii/- -
the observations of the gentleman from M^n ..
to have submitted a few remarks ODtbe>'
of the bill. [He here specified someamendi'
which, in his opinion, the bill required.]
Mr. Griswold moved to recommit the V.
the Committee of the Whole House for la-.
ment. and stated wherein he conceiredi:..-*
quire amendment.
Messrs. Randolph, Jones, JoHN80!f,iBdGi-
WOLD, vindicated the correctness of tbeprcr?.:
of the bill ; when the motion to recomnii: n
taken, and lost — yeas 26.
Mr. Dennis. — ^Havin? been on freqaentlrLt
involuntarily on this bill, it is with reiactu;
I rise again. I have to regret my absence i: •'
time my colleague animadverted upootr*
marks which had previously been madcbTi'
or on the proceedings in the progression ir^-
bill in whicn I took a part.
Mr. S. Smith said he had made no lenu.'b^
specting his colleague in his absence.
Mr. Dennis. — f beg pardon for iheB--^^
My colleague, however, seems to have At- -^
a new argument, not derived from ibfP*'"
principles of the bill, but from locales:; '^•
lions. He conceives that Maryland paysi^i
more than her proportion of these taies. vi -
it is therefore his duty to vote against iher*
tinuance. But I have frequently obserT^i •
the only way to inquire into this subject is tc •
pare our internal and external revenue. Hi::
colleague attended to this circumstance he r-
have spared his remarks.
We have not documents whereon tograc'-
genera] view of the subject. But in the tt-<'j*
it appears there were collected of the la^/
taxes $72,735 in Maryland, and in the vbc'^-
ted States $919,719. I will remark, that if v
land pays more than her proportion of tit-*
nal revenue, she pays infinitely more of th<'T^'-
nal duties. Of these last, Maryland ^T -
than a million, while the whole ainoott <i -
ten millions ; that is, she pays one-eighth ^
the whole external revenue, whicli is grea:fl
the proportion of seventy-two thousand tc .^
hundred and nine thousand dollars, the sai^'
culated upon by the gentleman from Marri-
I do not conceive that any accurate estiai
the sum actually paid by each State cao b(^
ed from the documents before us. I ^PJ'/
though a million of external duties is j»ifl'^^
timore, yet that the whole of that sura is «•?•
even by the whole State of Maryland. Th'«'
is the case with the interna! duties— for in*^
that on stamps is first paid by the mercban^|
lio not ultimately pay it, but throw it oo tb? *
sumer. The same is the efieci of the da::'-
refined sugar and on sales at auction. Fo^o^
is derived from sales at auction under an '
of court. The sales, on which duties art f-
are chiefly derived from large commerciai^
and they are not paid exclusirely tbere. ^-
1065
HISTORY OF CONGRESS.
1066
March, 1802.
hUemal Tcutes,
H. opR.
the great body of citizens of the United States,
who consume the articles sold.
In Virginia, there is paid on stamps $17^000;
in Maryland, $23,000. Thus it appears that in
Maryland, which is so much smaller than Vir-
ginia, there is paid in the first instance a greater
proportion of the duties on stamps; yet I cannot
suppose there is a greater proportion of this tax
actually paid in Maryland than in Virginia, as I
know that Virginia consumes more. The docu-
ment, therefore, throws no Jight upon the subject;
the whole statements of my colleague are ralla-
cious. The internal taxes, too, are chiefly impos-
ed upon luxuries, the consumption of which bears
no proportion to population. They are taxes op-
erating upon a particular description of citizens ;
in general upon the wealthy ; of course, where
there are most wealthy citizens, the greater por-
tion of these taxes is paid. This is particularly
the case with the carriage tax.
I have before expressed my disposition to repeal
the tax upon stills, not for the reason assigned by
my colleague, because Marviand pays more than
her legitimate proportion ol this tax. I know that
those who distil the most consume the least of im-
ported spirits. Now the tax upon domestic spirits
is infinitely less than that on imported spirits.
The first pays — cents, and the last 40 cents.
The necessary consequence, then, of substituting
domestic in the room of foreign spirits is, that we
are liberated in that proportion from the duty on
the latter. I am, therefore, for abandoning this
tax, not because I think Maryland pays more than
her proportion of it, but because it is inconvenient
in the collection, and requires a great number of
ofiicers to collect it.
The real question is, whether the tax on inter'
nal articles is greater than that upon imported ar-
ticles? No doubt the honorable gentleman (Mr.
Smith) pays a greater tax upon internal than upon
imported articles. But let the question be put to
the mechanics of the country, and they will an-
swer, retain the taxes upon all the internal arti-
cles except stills, and reduce the duties on those
imported articles which are necessaries of life.
Though a few wealthy individuals may pay large
sums to the internal revenue, yet it will be found
that nineteen-twentieths of the citizens of Mary-
land pay the most on imported articles.
This comparative view, in my opinion, is the
only accurate one which can be taken. I am,
therefore, still under the impression that if we can
dispense with part of our burdens, it is better to
retain part of the internal taxes, all excepting that
on stills, and make a diminution in the duties on
imported articles of the first necessity.
Mr. T. Morris. — We are called upon to destroy
at one blow all our sources of internal revenue,
and to rely for the protection of the Grovernment
exclusively on the external taxes. I am, for two
reasons, against this step. In the first place, I am
not convinced that we can do without this reve-
nue. It may be deemed rash in me, after the gen-
tleman from Maryland (Mr. S. SMig'H) has de-
clared that he has inquired into the expenditure
and the savings, and is satisfied of the extent of
the last, to say that I am not convinced that we
can dispense with these taxes. If I had not doubt-
ed before, his style of reasoning would not have
convinced me. We do not know what sum we
may be obliged to pay to Great Britain under our
treaty with her, nor do we know the extent of
our obligation, which a large portion of our citi-
zens think well founded, to indemnify for French
spoliations. Is it then proper to diminish our
revenue before we have inquired into these cir-
cumstances?
But, in the second place, however well con-
vinced I might be that we could spare these taxes.
I would vote against the repeal or the taxes upon
pleasurable carriages, sales at auction, refined su^
gar, and licenses to retailers, because they are for
the most part paid by the wealthy and luxurious.
The gentleman from Maryland (Mr. S. Smith)
objects to the tax upon carriages, because it falls
heavily upon the State ; he says, in Baltimore
there are a great number of hacks, which are not
owned by the rich. But I will ask the gentleman
who pays the hack hire, the.poor or the rich ? Do
the poor of Baltimore ride about in hacks ? The
very circumstance of the existence of so great a
number of hacks proves the carriage tax not to
be oppressive. '
The aggregate of the taxes upon carriages,
brown sugar, licenses, sal^s at auction, and stamps,
is $481,000. Make a deduction of $24,000 for the
expenses of collection, which lam persuaded will
be quite sufficient, and there remains a balance of
^57,000.
If the state of the finances admitted this reduc-
tion, I would prefer lessening 'the burden on the
other articles, which chiefly falls on the yeoman-
ry of the country ; on bohea tea, for instance,
which pays twelve cents, and on brown sugar,
which pays ^y^ cents per pound.
What are the objections made by gentlemen to
our plan ? They say they are for repealing the
internal taxes in preference to all others, because
they require a host of officers, and because they
increase Executive patronage, which is odious to
the American people, and hostile to the genius of
a free Government. But I take this to be falla-
cious. For I cannot conceive that those who ob-
ject to Executive patronage are seriously adverse
to it. We are to judge, not from their professions,
but actions; and when we see men of merit over
the whole Union deprived of their offices
Mr. Nicholson called to order.
Mr. Morris. — If the objection derived from the
alleged expense of collection be solid, it may
easily be removed by turning over the collection
to the deputy postmaster, who will consider five
per cent, as a sufficient premium. Whence, then,
the necessity of destroying a whole system be-
cause a part of it is defective ? If the number of
officers or the expense be too great, lessen them,
but do not on that account destroy the system al-
together.
Much has been said respecting the duty upon
stamps. I will acknowlege that, when it was nrst
laid, It was odious, because it was not then un-
derstood. I believe, however, that it is no\i^ a
1067
HISTORY OF CONGRESS-
H. OP R.
Internal Taxes,
Maich,1>j
popular tax in a g^reat part of the Union ; and if
the House had permitted a document for which I
moved, to hare been produced, it would have ap-
peared to be a tax chiefly paid by the opulent
part of the community. I believe that in my part
of the country it is as popular a tax as any paid.
Gkntlemen say the people are averse to these
internal taxes, and in the same breath they inform
us that if they are laid aside by this Government
they will be resumed in the several States. I do
know that in some of tbe States they are so little
odious that there is a double tax, one laid by the
State and the other by the United States. This
of itself is sufficient to prove that the disposition
of the country is not against them.
Had gentlemen convinced me that we could
dispense with the tax on stills, I would have
agreed to abandon it. But they have not con-
vinced me, and I am not, therefore, in favor of
abandoning it. But if they are willing to double
the tax on the other five sources of internal reve-
nue, I will join them in taking off the duty on
stills.
A strange charge is brought by gentlemen.
They accuse us with courting popularity. But
how long is it since, in the estimation of gentle-
men, it has been a crime to appeal to the senti-
ments of their constituents ? What ! if it is deem-
ed by a part of the House that a tax should be
taken on of some articles, though the majority
are for taking it off of others, are we to be called
base courters of popularity, when we address our
remarks, not only t3 the sober sense of the House,
but also to that of the people ? If the charge of
courting popularity apply anywhere, it is to the
President. Was it proper in him to designate any
particular tax as a nt one to be removed ? I must
say that this was going beyond his duty. For, as
all revenue systems must originate in this House,
it rested with us exclusively to originate as well
as decide whatever relates to revenue.
I have another objection to the repeal. Should
war, or any other untoward event occur, I ask,
what resource is there left to which we can re-
sort? If such untoward events should occur, we
cannot resort to our taxes on articles of luxury,
for the means of indulgence will be gone. We
must resort' to excises. It is owing to the flourish-
ing situation of the country that we are now en-
abled to tax luxuries. But when they cease to be
consumed, we must resort to objects of prime ne-
cessity. I ask, then, if the situation of the coun-
try is such as to warrant this abandonment of all
our internal resources? Do we not know that a
formidable foreign Power is to settle on our fron-
tier? Do we not know that a nation, not the most
tran(juil, is to take possession of Louisiana and
Florida? Are we, then, in such critical circum-
stances, to squander away our revenues?
Mr. Lowndes. — I did intend to reply to the re-
marks of the gentleman from Maryland (Mr. S.
Smith.) but I have been anticipated by the gen-
Uemen who have preceded me. I will therefore
confine my remarks to points not animadverted
upon by those gentlemen.
The gentleman observed that these taxes, if
hereafter required, may be restored, and bea^i
the people of this country are not like the pri'
of other countries. This I do not beliert h-
lieve they are like other people. I will d:.
their flatterer. I believe that they, like amp
pie, when a new tax is laid, will be against .i .
should not have troubled toe House on tlu-.r
ject, had not the Committee of Wap a&d M^l,
remarked, that however favorable they migtiz
in the abstract to a repeal of these taxes, i&i
would not have recommended a repeal, i: .i*^
believed that it would interfere with a poK.;
compliance with our engagemenis. Iftlijn
their opinion, it was incumbent oponikecL
show us that the repeal would not iDterferen:
a punctual compliance with our eagageoeiii
which they have not done.
I have voted for striking out all the ir^^
moved, not that I am against retaining them.;
stills. On the contrary, I believe it thebdu
because it is paid by those who pay Dootner^i
and because taxes should be equally di^n^i^
throughout the community. Brides, the di^tr a
distilled spirits is but thirteen cents, while iki
imported spirits is twenty-eight cents, h-.].
then, those who consume the former ha«*'*>
son to complain. The difference oH^'^^
bounty on the consumers of distilled sp^rf-' ^*
is there any reason why the consuniertiiV.-
made spirits should be more exempt froa ac-
tion than the consumer of foreign spiriul
Another objection to this tax is urged, t <
said, that it creates an Executive patronage &-'
to the genius of a free people ; and thai ii J>'^
pressive in the collection. But io what b: ^'
pressive? Have we received a single pt"'
against it ? Nor can I conceive how itisc^^-*
to the genius of a free people. I know thai p
erly in other countries excises were odioos. i-
lectors possessed summary jurisdiction, asu i^
trial by jury was taken away. But do il>«ert^
ulations exist with us '^ I have read som« f'
tions that were formerly presented on this sa^r-
wherein the petitioners complain thattiief*^^
obliged to write in large letters, '• Stills," of-^
houses. But, if there existed no stronger ?r*^
of complaint, this is a proof that thciai«^^
ther inconvenient nor oppressive.
We are told the collection requires a greai^^
her of officers, and that it extends the patron
of the President. There are about fourhw^
officers, scarcely twenty to a Slate; H^^'f!,
tlemen are alarmed at the danger of this p- ■'
age to the liberties of the people. Soraeu -'■
officers receive only thirty-two dollars a yea'*^
these are the hosts that are to desux)y the u <-^
of the country. I think differently of l^^^\^
patronage. It may extend so far as loexcik -
nopes of expectants, but not to gratify ibem.^.^
ry appointment that makes one friena. cr«
twelve enemies. The Executive will deriv ■
securitv to his power from this pat^o^l?*; '
can only excite expectation. As ^P'?!!., ,;■
we see, froo^the papers, that, instead of w''^;
vacancies in a Constitutional manner, ui< l*|^
are called together to designate the officer.
1069
HISTORY OF CONGRESS.
1070
Marcb, 1803.
bitemal Ihxee.
H. OP R.
whatVas intended to be committed to the discre-
tion of a constituted agent, is exercised by a
junto.
The tax on stills has existed since the year 1790.
Of late we have heard no complaints, we have
seen no petitions ; and I think it can impose no
hardship on the community, because I see the rev-
enue steadily increasing, out suppose there are
hardships, is there no medium between the entire
continuance and abolition of it ? Gentlemen have
loDg enough exercised their talents for destruction ;
let them now use them for beneficial purposes.
We have heard much about retrenchments;
bat the retrenchments yet made, consist altogeth-
er in sound. It is said the Judiciary is abolished.
I am sorry for it. But I have seen a letter from
a gentleman on the other side of the House, which
says, the salaries of the judges are not touched.
There is, therefore, on this head, no retrenchment;
and if it is the intention of gentlemen to appoint
other judges, the expense will be increased.
The Secretary of War has told us laconically
that in his department there will be a saving of
four or five hundred thousand dollars. But are
we to be guided by expressions so vague ? How is
this saving to result? What difference is there be-
tween the present and the old establishment? As
to men there is no real reduction, as the old estab-
lishment was not full. On the other hand, there
will be an increased expense, from the dismissed
ofiicers receiving one month's pay for every year
they have been in the service.
It is also said there is to be a reduction of
$200,000 in the Navy Department. But one re*
jwrt of the Secretary says there is to be no reduc-
tion, and another that there is to be a reduction of
$200,000. Which is to be credited ?
But are there no new expenses ? Have gen-
tlemen forgotten that we have passed a law for an
increased representation, which will add forty-
three members to the present number, at an ex-
pense of about $1,000 a year. I say that this ne^v
expense amounts to more than all their boasted
savings. If. however, they really wish a saving
of the public money, why not reduce our own
compensation to two dollars a day? This would
have two good effects. It would lessen our per
diem allowance, and shorten our sessions.
I have another reason against the repeal of these
taxes. I am informed that the President has re-
ceived official information that Louisiana and
Florida are ceded to Prance. We know there is
a dispute respecting the boundaries of these prov-
inces. Is it then wise, at this critical period, to
dispense with your internal resources ? In case of
a war, your revenue derived ffom imposts would
be suspended. If these internal taxes are retained,
in such an event they might be improved and
enlarged.
I have another strong argument against the re-
peal. I allude to the claims of our merchants,
whose justice cannot be resisted. I believe this
country has acquired a fortunate release from its
obligation to guaranty the possessions of France
in the West Indies. Had We been called on during
the war in Europe to take efficient measures to
guaranty these possessions, a refusal would have:
been a cause of war. I think, therefore, we have?
purchased the exemption cheap. But on every
principle of justice or honor we are bound to make
good the claims of our merchants on the French
Gk>vernment, which we have thereby extinguished.
We have heard from gentlemen much about
their intention to reduce the national debt, and I
believe the Committee of Ways and Means hav^
reported an appropriation of seven million three
hundred thousand dollars for that object. I would
be glad to know where this sum is to come from 9
If gentlemen are sincere in their desire to pay off
the debt as speedily as possible, they shoula have
postponed, at least for one year, the repeal of these
taxes. They should have recollected, that they
are as yet inexperienced and untried in the admin^
istration of the Grovernment.
Mr. LowNOEs concluded by observing, that in
his opinion, the -patronage of the Executive ha
appointment to office, was not to be dreaded ; but
that if ever the time should come, which, he
hoped to God, never would, when members of
this House should be so obsequious to the will of
the President, as to vote for a bill at his nod, such
patronage would be dangerous indeed.*
A motion was made to^djourn, which was lost
Mr. Dana. — It is not my purpose to detain the
Committee long ; but as the subject is important,
it cannot be improper to offer some observations
upon it. It may seem strange that any person
should be induced to oppose an abolition ot taxes.
The affairs, however, of Government, the honor
and public faith of the nation, cannot be alwaye
supported without some pecuniary burdens, and
when these require the imposition, taxes should"
be levied, however unpopular the act. We were
told, at the opening of the session, that strong and
efficient measures would be taken for the speedy
discbarge of the public debt. This is the first
revenue bill introduced into the House. Is it an
evidence of such disposition ? I know no proper
wa)[ of extinguishing the public debt, except by
paying it honestly. I do not know how gentlemen
mean to extinguish it ; but I am sure they cannot
rifi^htfuliy extinguish it by destroying the means
of payment. If they wish rightfully to free the
country from it, instead of continuing the taxes^
they ought to devote themselves to its extinction.
The Navy six per cent, may be redeemed at plea-
sure. Other stock, too, is comparatively low in'
the market, much lower than it may be in a few
years. This, therefore, is an eligible season for-
the advantageous purchase of it with the proceeds
of the taxes.
I have a further argument to oppose to the*-
abolition of these taxes. They are pledged ex*
plicitly to the payment of the public debt. [Mr.
D. quoted the law to that effect.] These sources
of revenue are the more important to the public
creditors, as they may be compared, in point of
security, to a mortgage of real estate, not subject'
to the casualties of war or other misfortunes.
What will be the effect of the proposed repeal 9 f
Your public debt is to be paid. You abolish an ^
annual revenue of several hundred thousand dol-*'
1071
HISTORY OF CONGRESS.
I.
H. OP R.
Internal Taxes,
MiBCfi. '.?2.
lars. Compute the time during which you will
6e discharging the debt, and you will see that the
abandonment of these taxes will be equal to an
abandonment of six or seven millions. To this
nmount you throw additional burdens upon com-
merce, and to a proportionate extent of time, you
postpone the ultimate payment of the debt.
What proof is there that this debt will be spee-
dily extinguished by payment? Is it intended
that the Navy shall pay it ? The Secretary of
that department strikes out $200,000 from his for-
mer estimate : but is it not known, that the plan
of naval supplies must be in part, if not wholly
abandoned under this last estimate?
. The report from the War Department is of a
still more singular kind. The Secretary says, the
difference between the expense of the present and
the last establishment, will be little more or less
than five hundred thousand dollars. The Com-
mittee of Ways and Means say there will be a
saving of a sum exceeding $40l0,000. Thus we
see there is a difference between the two state-
tnents of about $100,000. Is this information
sufficiently correct to rely upon?
But is there really such a saving? The only
evidence wie have on which we can depend must
be derived from the experience we have had. A
difference between the military expenses of the
last and the present year may arise from the re-
duction of price as to provisions, clothing, and
transportation. But this reduction has been esti-
mated at no more than $200,000 for both the
Aripy and Navy. The estimate of the Secretary
of War for posts and garrisons, evidently is predi-
cated upon the principle of having the full num-
ber he has stated, of effective men. What then
is the real military reduction ? As to the former
establishment, it is well known that it never was
full. According to the return laid before the
House, there were in the service 4,051 men includ-
ing the officers. According to the Peace Establish-
ment, lately adopted, there will be 3,040 men, be-
sides officers, maKinfir together about 3,270. The
difference between the two is 780. What would
be the cost of these 780 men ? In ordinary ser-
vice, the average of $200 a year has been compu-
ted as sufficient for officers and men. Suppose
the service on the frontier to be more expensive,
and make an allowance of $300 for each military
individual — then the whole cost will amount to
between $200,000 and $240,000. If you. allow
$400 for a year, which is double the ordinary
average, the amount will be about $300,000. Dur-
ing the Indian war, when the prices were enor-
mous, the average expense for each military per-
son did not, I believe, exceed $400. It cannot
DOW, therefore, be so high — and it follows that
the actual saving cannot be so great as that esti-
mated by the Minister at War, by one or two hun-
dred thousand dollars.
Much has been said respecting the carriage tax.
It is said that in New Jersey there are a great
Dumber of carriages owned by persons in mode-
rate circumstances, which pay a duty of two dol-
lars. If the tax operates oppressively, modify it.
The whole number of carriages, which I suppose
are referred to, is but about eight hundred fn
United States. All that is derived fromik i'-
cies of tax does but little exceed (be ae :
$1,600. Strike it out then, if improper— it ao -.
to nothing in this question. ThegeDilemiaf;:
Massachusetts, (Mr. Bacon,) affecb part.£u
solicitude for clerical men. I am doc dispell
question the sincerity of his regard for iheis...
the argument proceeds on a suppositioo vbi.
fallacious. Undoubtedly it would be imprcfr:
select that description of citizens, ortbose iiv
habit of attending public worship, as pecub >
jects of taxation. If this were the prinep-
the duty on pleasure carriages, it might josiijS:
censured. But when such citizens are abc
keep their carriages, and exhibit.theo^diDa^^^
dences of prosperity, they, like other per^c :
similar circumstances, may be taxed by ikG'
ernment ; and I hope gentlemen do not mti:.
evince their ideas of those who are religiic '
considering them as doomed to perpetual pq
Some 01 the reasons of the Committee of Wi-:
and Means merit attention. Thef say ttoi cri-
ses are hostile to the genius of a free people. B::
were the members of the General Conrat*:;
that opinion when they agreed to a Cod£. -^
which conferred on the General Goverase:!'
power of laying them ? Or did the peop'oM?
them to be hostile to their liberties whttiit'
ratified that Constitution? At the time : ::i^
ratification were the people free, or were >
slaves? The truth is, the ConstitatioDbs
plicitly given authority to lay excises, ui-
principle is settled.
It is said that the collection of these tlI^^
quires a great host of officers. I am nQxkv^
at this time to discuss the question of Cxe^^^
patronage. I shall dismiss it with sayinziii'^
cers are public agents, not those of thePrp--^-
The doctrine that they are the agents of tfeti
ecutive Magistrate, and not of the pubiif.ii^'^
one. I am not disposed to admire a priDcip:^
makes all the public agents the obsequioas is^-'
ments of an individual in power.
The Committee say that these taxes b- •
system of espionage. It is to be hoped li*' *
terrors of Gallic phraseology will not awezt *
men into a surrender of their intellectual faca *
Is this anything more than amereimagioa't'^
fanciful nullity ? Are those who make aaa^-
whiskey examined with the same jealous cifJ^
the merchants? The master of an Amc ^
merchant vessel, importing goods from i^^^'j-
port, must have on board a manifest of ibeci'-
When arrived within four leagues of ibe f^-
he may be met and boarded by one of you^f' "
nue cutlers. A manifest must be exhibiifa--
a copy of it delivered to the officer of cqMoii- -
board the cutter, who is to forward it toa cuy -
house. When arrived within the limits <^*
custom-house district, the vessel may ^ *?*^
boarded by an officer of the customs, when a si^
ifest must be again exhibited and anoili" f
must be delivered. The master must a.w*^'
make his report and entry, and exhibit a idj^^
at the custom-house. A distinct entry is«^
1073
HISTORY OF CONGRESS.
1074
March, 1802.
Internal Taxes.
H. g|R.
qaired in various instances, to be made by the
merchant. The entries must be verified on oath.
Id addition to all these precauiioDs, an inspector
is put on board the vessel, to watch the landing
of every article. Nothing^ is allowed to be deliv-
ered out unless in open day, except by special li-
cense. And the inspector may secure the hatches
for the night, by locks and other fastenings, as be
shall judge necessary.
Compare this system of regulations with that
for coUectiiig the internal duties. In point of strict-
ness, is the last equal tu the former? Will it be
said that those who make and deal in whiskey are
more worthy of respect and confidence than the
' American merchants and commanders of merchant
vessels?
If your jealous regulations are odious in their
application to the internal revenue, are they not
ten-fold more odious in their application to the
external ?
There is another principle advanced by the com-
mittee that is deserving of attention. It is that
the United States should derive their revenue
from the duties of the customs, and leave to the
particular States their rev-enue to be derived from
internal taxes. Has it not been assured as a prin-
ciple, that taxation and representation should be
reciprocal?
The Constitution has provided, that representa-
tives and direct taxes should be apportioned among
the respective States according to the number of
free inhabitants, and three-fifths of the black pop-
ulation. Why was the allowance made for these
three-fifths ? Was it not on the principle of ma-
king the representation conformable to internal
taxation? If gentlemen considered it as the true
policy of the United States to continue in peace
with all the world, and if there are to be no inter-
nal taxes except in time of war, why should four-
teen or fifteen representatives be ultimately allowed
to certaia 'States on account of the blacks whom
they hold as property ? As they extend through
the interior of the country, and may assist the
Government in equalizing the public burdens, and
the various parts of the community, internal duties
are so far analogous to direct taxes. Yet some gen-
tlemen appear to refuse to the Government of the
United States the exercise of int/ernal taxation al-
together, and yet would assure to particular States
thatextraordinary number of representatives which
they are allowed for the number of their slaves.
Gentlemen should be cautious, and not press their
advantage too far. The benefits which the Con-
stitution has ^iven them, with respect to persons
holden in servitude, may be very agreeable to them,
but abuses of the power thus put into their hands
may render certain provisions of the Constitution
peculiary odious to other parts of the Union.
Mr. Dana was followed by Messrs. Huger,
Hastings, and Griswold, who made a few re-
marks against the passage of the bill, and by Mr.
Varndm in favor of it.
When the question wa^ taken on the passage,
and carried — yeas 61, nays 24, as follows.
YxA8 — Willis Alston, John Archer, John Baconi
TheodoruB Bailey, Phanuel Bishop, Richard Brent, Rob-
ert Brown, William Butler, Samuel J. Cabell, Thomas
Claiborne, Matthew Clay, John Clopton, John Condit,
Richard Cutts, Thomas T. Davis, John Dawson, William
Dickson, Lucas Elmendorf, William Eustis, John Fow-
ler, William B. Giles, Edwin Gray, Andrew Gregg, John
A. Hanna, Daniel Heister, William Helms, William
Hoge, James Holland, David Holmes, Benjamin Huger,
George Jackson, Charles Johnson, William Jones,
Michael Leib, John Milledge, Thomas Moore, Anthony
New, Thomas Newton, junior, Joseph H. Nicholson,
John Randolph,jun. John Smilie, Israel Smith, John
Smith, of New York, John Smith, of Virginia, Josiah
Smith, Henry Southard, Richard Stanford, John Stanley,
Joseph Stanton, jr., John Stewart, John Taliaferro, jr.,
David Thomas, Philip R. Thompson, Abram Trigg,
John Trigg, Philip Tan Cortlandt, John P. Van Ness,
Joseph B. Vamum, Isaac Van Home, and Robert
Williams.
Nats — James A. Bayard, Manasseh Cutler, Samuel
W. Dana, John Davenpbrt, Abiel Foster, Calvin Grod-
dard, Roger Griswold, Seth Hastings, Joseph Hemphill,
William H. Hill, Thomas Lowndes, Ebenezer Mattoon,
Lewis R. Morris, Joseph Pierce, Nathan Read, John
Cotton Smith, John Stratton, Benjamin Tallmadge,
Samuel Tenney, Thomas Tillingbast, George B. Upham,
Killian K. Van Rensselaer, Peleg Wadsworth, and
Lemuel Williams.
Tuesday, March 23.
The bill sent from the Senate, entitled "An act
to regulate trade and intercourse with the Indian
tribes, and to preserve peace on the frontiers," was
read twice and committed to the committee to
whom were referred, on the seventh and twenty-
seventh of January last, the memorial of Evan
Thomas, and others, and a Message from the Presi-
dent of tne United States on the subject of Indian
affairs.
On a motion made and seconded that the House
do come to the following resolution :
Resolved, That a committee be appointed to inquire
whether any, and, if any, what alterations are necessary
in the several acts relative to the establishment of a
marine corps, and in an act fixing the rank and pay of
the commanding officer of the corps of marines^nd that
the committee be authorized to report by bill, or other-
wise.
Ordered^ That the consideration of the said
motion be postponed until Thursday next.
On motion, it was
Resolved^ That the President of the United
States be requested to communicate to this House
such information as he may have received, relative
to the copper mines on the south side of Lake
Superior, in pursuance of a resolution passed the
sixteenth day of April, one thousand eight hundred,
authorizing the appointment of an agent for that
purpose.
Ordered, That Mr. Gregg and Mr. Stratton
be appointed a committee to present the foregoing
resolution to the President of the United States.
The House resolved itself into a Committee of
the Whole on the bill making an appropriation for
defraying the expenses which may arise from car-
rying into effect the Convention made between
1075
HISTORY OF CONGRESS.
If'
H. ocbR.
Proceedings.
Mahcb. i'^
the United States and the French Republic ; and,
after some time spent therein, the Committee rose
and reported several amendments thereto.
The House then proceeded to consider the said
amendments at the Clerk's table. Whereupon, the
first amendment reported from the Committee of
the whole House, to fill up the blank iu the bill
with the words " three hundred and eighteen thou-
sand dollars/' being twice read, was, on the ques-
tion put thereupon, agreed to by the House.
The second amendment, reported from the Com-
mittee of the whole House- to the said bill, being
twice read, as follows: Strike out the words ^^ first,
out of the proceeds of any French prizes which
have or may come into the Treasury of the Uni-
ted States, and which have not yet been otherwise
applied; and secondly:"
The question was taken that the House do con-
cur with the Committee of the whole House in
their a^^reement to the said amendment, and re-
solved in the affirmative — yeas 52, nays 26, as fol-
lows:
YsAs — James A. Bayard, Robert Brown, William
Butler, John Campbell, Thomas Claiborne, Manaaseh
Cutler, Richard Cutts, Samuel W. Dana, John Daven-
port, John Dawson, John Dennis, William Eustis, Abiel
Foster, John Fowler, William B. Giles, Calvin Goddard,
Roger Griswold, William Barry Grove, John A. Hanna,
' Seth Hastings, Daniel Heister, William Helms, Joseph
Hemphill, William H. Hill, William Hoge, Benjamin
Huger, Thomas Lowndes, Ebenezer Mattoon, Samuel L.
Mitchill, Lewis R. Morris, Thomas Morris, Thomas
Newton, jr., Joseph H. Nicholson, Joseph Pierce, Na-
than Read, John Cotton Smith, John Smith, of New
York, Samuel Smith, Henry Southard, John Stanley,
John Stratton, Benjamin Tallmadge, Samuel Tenney,
Thomas TiUinghast, Abram Trigg, John Trigg, George
B. Upbam, Joseph B. Vamum, KUlian K. Van Rens-
selaer, Benjamin Walker, Lemuel Williams, and Henry
Woods-
Nats — Willis Alston, John Archer, John Bacon,
Theodonis Bailey, Samuel J. Cabell, Matthew Clay,
John Clopton, John Condit, Thomas T. Davis, William
Dickson, Lucas Elmendorf, Edwin Gray, Andrew Gregg,
David Holmes, George Jackson, Charles Johnson, Wil-
liam Jones, John Randolph, jr., John Smilie, Israel
Smith, J%hn Smith, of Virginia, Joeiah Smith, Richard
Stanford, Joseph Stanton, jr., John Taliaferro, jr., and
Isaac Van Home.
The other amendment, reported from the Com-
mittee of the whole House, was, on the question
put thereupon, agreed to by the House.
Ordered, That the said bill, with the amend-
ments, be engrossed, and read the third time to-
morrow.
Wednesday, March 24.
A new member, to wit : Walter Bowie, from
the State of Maryland, returned to serve in this
House as a member for the said Stale, in the room
of Richard Sprigg, who has resigned his seat, ap-
peared, produced his credentials, was qualified, and
took his seat in the House.
An engrossed bill makins an appropriation for
defraying the expenses which may arise from car-
rying into effect the Convention made between
the United States and the French RepabiKi
read the third time and passed.
The Speaker laid before the HonsealetM!:
the Secretary of the Treasurv, accompaay.:
letter to him from the Comptroller of the Tra*
and sundry statements, marked A, B, C. D i
E, prepared in pursuance of an act, enntld -
act establishing a Mint, and regalatiogthfr
of the United States*," which were miiz:
dered to lie on the table.
Mr. Dennis, from the committee appointd
the ninth and seventeenth ultimo, preWotedi
for opening a canal to commnnicate firom tb!
tomac river to the Eastern branch thereof, ihs
the City of Washington, which was twice ?
and committed to a Committee of the whole H?
on Friday next.
Mr. John C. Smith, from the Commirr
Claims, to whom was referred, on the fir^nsv
the memorial of Stephen Sayrejnade a ^;.
which was read and considered : Wberenp.i
Resolved, That the memorialist baTelear;
withdraw his said memorial.
Mr. Stanley, from the committee to irhri:
referred, on the nineteenth of January Ik i
tilion of Memucan Hunt and others, add'^^: :
the Greneral Assembly of the Stale of iVor^Crc
lina; and to whom were also referred suD^n*^
lutions of the said Assembly, respecting r
of the petitioners for the value of cerfainx '
the State of Tennessee, held under graub ' i
the State of North Carolina, prior to the ^ i
of the said lands to the United Statesman?:*
port thereon; which was read, and orderti i
committed to a Committee of the whole fi^.^i
Monday next.
The House proceeded to the considerati:: j
motion, made the tenth instant, in the voriii:
lowing, to wit :
Resolvedy That the President of the Sntiu >>
Speaker of the House of RepresenUtiTei be tstb '^
to close the present session, by adjouminf ^- ^
pective Houses on the second Monday in Apnlo^^-
And; the question being taken that tbfH:
do agree to the same, it was resclred in ^ -
firmative.
The House resolved itself into a Comffl'"*'
the Whole on the bill sent from the Sena:^ i
titled "An act "to authorize the President c:j
United States to convey certain parcel* c*^
therein mentioned ;" and, after some lime ; '^
therein, the Committee rose and reported i:j '
without amendment.
The said bill was read a third time and fs^'^
Mr. Samuel Smith, from the coniniitt'*
whom was yesterday committed the bill sm-'
the Senate, entitled ''An act to nguhtitncf^
intercourse with the Indian tribes, and topr^^
peace on the frontiers," reported the same ^^
House, without amendment: Whereupon. ^
Ordered That the said bill be read lie ^-
time to-morrow.
The House went into a Commi«« ^^ J
Whole on the bill to continue in force ai»-^,
augment the salaries of certain officers a^
named.
1077
HISTORY OF CONGRESS.
1078
March, 1802.
Pay of Members.
H. OF R.
The Committee rose and reported the hill with
an amendment, thai the law snould continue two
years instead of three.
Ordered to lie on the table.
Tbur6dat, March 25. ,
The bill sent from the Senate, entitled "An act
to regulate trade and intercourse with the Indian
tribes, and to preserve peace on the frontiers," was
read the third time and passed.
Mr. MiLLEDGE, from the Committee of Elec-
tions, to whom were referred the credentials of
Walter Bowie, returned to serre in this House as
a member for the State of Maryland, in the room
of Richard Sprigg, who has resigned hisseat, made
a report thereon ; which was read, as follows :
" That it Rppe&TB, from a certificate signed by the
CtoTemor of the State of Maryland, in Council, and un-
der the seal of the said State, that Walter Bowie was
duly elected to serve as a member of the House of Rep-
reaentativeB of the United States, in the place of Rich-
ard Sprigg, who had resigned his seat.
** That the resignation of Richard Sprigg satisfacto-
rily appears from his letter of the tenth of Februaiy
last, addressed to the Speaker of the House of Rep-
resentatives.
** Jtefoivedt That, in the opinion of the committee,
Walter Bowie is entitled to take a seat in the House,
as one of the Representatives for the State of Maryland,
in the room of Richard Sprigg."
Ordered. That the said report do lie on the table.
A message from the Senate, informed the House
that the Senate have passed the bill, entitled ^^An
act for the rebuilding the light-house on Gurnet
Point, at the entrance of Plymouth harbor ; for
rebuilding the light-house at the eastern end of
Newcastle Island ; for erecting a light-hoose on
Lynde's Point, and for other purposes.'' with sev-
eral amendments ; to which they desire the con-
currence of this House.
On motion, it was.
Resolved, That the Secretaries of the Depart-
ments of State, Treasury, War, and Navy, respec-
tively, be, and they are hereby, directed to lay be-
fore this House, a statement of the application of
the appropriations made by Congress for clerk-
hire in their respective Departments, specifying
the persons, and the salaries allowed to each, for
the last three years.
PAY OP MEMBERS.
Mr. Bacon moved the following resolution :
JResolved, That a committee be* appointed to consider
whether any, and, if any, what, redaction ought to be
made from the pay of the Senators and Representatives
in Congress, as now established by law, and that the
said committee have leave to report by bill, or otherwise.
Mr. Bacon said he had always thought that, in
a Government like ount, compensations to public
agents ought not to be high ; that in such Qov-
ernments, public ofiSces, if lucrative, will become
objects of envy, and, from being objects of envy,
will become objects of hatred, until, finally, the
€rovernment itself will become an object of hatred.
He had reason to believe that the salaries and
compensations, heretofore allowed by the United
States, had not been duly apportioned among the
oflScers; and he considered this as applicable to
the members of the Legislature. He thereforei
moved, in substance, that a committee be appoint-
ed to inquire whether any, and what, reduction is
necessary to be made in the compensation of the
members of the Senate and of the House of Rep-
resentatives, as fixed by law.
Mr. Davis wished, if the gentleman intended
to act upon a general principle, tbat he would ex-
tend his motion to the Clerk of the House.
The question was put upon taking up Mr. Ba-
con's motion, and carried — yeas 49.
Mr. Davis moved to add to Mr. Bacon's 190-
tion '^ and officers of the House."
Mr. Alston considered this amendment un-
necessary, a^ the object was now before a com-
mittee who had maturely considered it, and were
ready to report.
Amendment lost — yeas 22.
Mr. Elmenoorf entertained no doubt, when he
considered the quarter from which the motion
came, of its having been maturely digested. He
hoped, in order that the House might learn what
deduction could be made, that it would be unani-
mously committed.
Mr. Dana hoped the yeas and nays would be
taken, that it might be seen whether the House
were unanimous.
Mr. Claiborne said that, as he should probably
vote against the resolution, he would assign the
reasons that governed him. In 1793 or 1794 he
said he had offered a similar resolution. At tbat
time he was not acquainted with the necessary
expenses attending a seat in this House, being a
new member. Besides, he was persuaded that the
unavoidable effect of reducing the compensation
so low that men of moderate property could not
hold seats, would be that Congress would be filled
with nabobs.
Mr. Bayard said, he presumed the honorable
gentleman from Virginia (Mr. Claiborne) would
scc^cely accuse his friend from Massachusetts
witn a disposition to introduce nabobs into this
House, or to exclude good democrats. Nor is this
our object. But we do conceive that, when gen-
tlemen are for tearihg down every old establish-
ment, in order to prove their patriotism, they
ought to bring home to themselves the effect of
these operations. Mr. B. said he did not, however,
like the shape of the present motit)n. He believ-
ed that it was meant to import something not
likely to be seen by the House. The sending that
to a committee, which every member must under-
stand, appeared to him a work of supererogation.
What can that committee do ? Simply collate
the allowance with the expense of living. This
every member can do as well for himsdf. The
report, therefore, can furnish no new information.
In order to test the sincerity of gentlemen 00 this
subject, he would make a direct motion. Not
that he thought six dollars a day too much on the
old system. But the present compensation ought
to be accommodated to the new plan. He there-
fore moved that a committee be appointed to bring
1079
HISTORY OF CONGRESS.
101
H. OF R.
Pay of Members,
MiBCB.
in a bill to reduce the compensatioa of members
from six to four dollars a day.
Mr. Davis moved to strike out four, and insert
two dollars a day.
Mr. Dana inquired, whether it was in order to
divide the question?
The Speaker replied in the affirmative.
Mr. Dawson moved the postponement of the
question until the last Monday in November. He
stated that, in making this motion, his only wish
was to prevent a waste of the public time, and
not from an unwillingness to meet the question ;
and he took occasion to declare, that he should
vote against every proposition which went to
change the present pay, which he considered as
not more than adequate, and to which ail liberal
and reasonable men would assent.
Mr. Nicholson hoped the postponement would
not take place. He had no hesitation to say that
he found six dollars not more than sufficient. But
if gentlemen were ready to make sacrifices he
would be as ready as any of them. He hoped,
therefore, the question would be immediately
taken, and that it would be seen how far gentle-
men were for making sacrifices.
Mr. HuGER hoped the naotion would not prevail.
He had no hesitation in saying he was against all
reduction. He knew that it was a popular thing
to reduce salaries, and that those who make such
.motions may get credit abroad. Without osten-
tation, he might say the compensation was no ob-
ject to him. If there were no compensation, he
would still return to his seat, if he ofiered and
should be elected.
He conceived the reduction in every way im-
proper. Every gentleman must know the incon-
veniense of leaving home, and of neglecting a
farm or a profession. Gentlemen do not consider
the sacrifice that is made. A gentleman is brought
here in the honorable character of a Representa-
tive of the people. He would ask, if he was not
obliged to live in decent style ? He believed that
many able and respectable men could not afford
to attend without a compensation. As far asjiis
information extended, he believed that, in^is
State, many men whose talents would confer
honor on their country, were prevented from com-
ing here from the smallness of the compensation.
He believed it was a great object to have fit men
in office, and this end could not be attained with-
out the allowance of decent emolument. It is a
dreadful thing that you are to carry a man from
his family and friends, and then grudge him the
small pittance of six dollars a day. The iiatural
effect of reducing the compensation so low, is to
throw the best men out of office. Perhaps no
class of citizens is more fitted for public stations
than that description of citizens who can just live
at home, without having anything over to spare.
Can such a man come here, return home, and find
himself in as good a situation as when he left it ?
Can it be the wish of the Americen people to re-
duce men, who serve them, to this situation ? Mr.
H. said, it was not his wish to see the Govern-
ment managed exclusively by the rich, or by those
who had no stake in the country. The effect of
this resolution will be not to put better rae:
office, but to abridge the field of choice. WeU
heard no complaints from the people respect
the present compensations. No geDiIemani
say this is a cheap place. ExpeQ:ses hern
greater than in Philadelphia. Here }o. i
obliged to incur a considerable expense, o: i
must live miserably.
As to other contemplated dimiaatioos. k i
af^inst them as well as this; he wooldni]
disband the whole armv than reduce ilteoi
pensation paid to members. If redocd, il
shall we gain ? a mere bagatelle ! As bad m
observed by the gentleman from Virginia, l
Civil List did not constitute the great expe23«
the Government. Economy is a good thiifj
let us be moderate and wise in oar applicant
it. Mr. H. concluded by observiD^.thaibt^!?:!
not have made so strong an opposition lotli^a
tion^ if the present compensation wereuyc:^
to him.
Mr. Smilie said, he had often seen this 211
played in Legislative bodies; bat he diiina.ici
ollect that he had ever before seenilpl^f^-^i
Congress. He had not so contracted as \^ ^
the American people as to believe thi^ ^^ ^
obtaining popularity would succeed. T:r.:.s
way, in his opinion, to obtain populariiyTC.i
do what was right. This had been hiscoama
had hitherto stood tolerably well with his c' 1
uents ; and so long as he continued to por^it -i
same coijrse, he had no doubt his coDstitutti
would continue to approve his general codjk'.
As to any reduction whatever in thecoojrtjJ
tion of members, he would not say that ii wis :^
proper, but he would say that the proposed rci.-3
tion was too great. The general plan of ^^'j
tion, to which gentlemen had alluded. w2»i a
ferent one from the present. The former n* J
dispense with all establishments that were o?*?^
So far, he concurred in the plan, and deesf.^
correct. Whether it would be expedieoiij
duce the salaries of some officers, he wasu-'j
pared to say, thoufi(h he was inclined to "-i
there were some officers, among whom were i^^^
of the collectors of ports, who appeared to r«c^
too much.
If one event take place ; if we reduce the «J
ries of officers generally, then we ought toRf^
our own. He concurred with the genilenjaD.
South Carolina (Mr. Hdger) in theopinis-J
it was not proper to reduce tne corapeosai:---'
far, as to deprive the intermediate classes of wfl^
izens of the power df serving their countrf.
was not intended by the Constitution, vnif^^*
in the qualifications of a President require j^
possession of no property. It was. w? •
clearly intended that the people should
right of calling all classes ofcitlzensinioin
icv i^
clearly intended that the people should fn>V
right of calling all classes ofcitlzensinioij^r'
lie service. Suppose we were to declared' j
that no man that was possessed of P^^Pf ^^j". ]
amount of ten thousand dolKrs should w^^
to a particular office, would not this be aw-;;
tutional ? Yet, may we not accomphsb id« '
6nd in a different way ? ^^.
Mr. S. supposed this motion was to be ^
L081
HISTORY OF CONGRESS.
1082
^ARCH. 1802.
Pay of Members,
H. OF R.
Ted as an electioneering business. As to himself,
personally considered, it was a matter of indiffer-
nce to him, whether he was here or at home,
ie had never considered a seat in this House as
I matter of emolument; and he believed every
aember viewed the compensation in the same
ight. He would, therefore, vote both against the
postponement and against the resolution.
Mr. Dawson withdrew bis motioivof postpone-
aent. He had made it to save time, but as it ap-
peared to have an opposite effect, he declined per-
isting in it.
Mr. Bayard said he agreed to vary his motion
o as to insert two dollars instead oi four dollars.
Mr. Giles observed, that he only wished to re-
aind gentlemen that they had yesterdav passed a
esolution for adiourninff on the second Tuesday
►f April. He believed there never was a subject
»efore Congress that required less reasoning; and
f gentlemen will spare remarks not calculated to
promote the dignity of the Grovernment, they will
:oofer a favor on the House. He was himself
perfectly persuaded that the compensation of six
iollars was not too hi^h. In entertaining this
ipinion he was quite disinterested, as it was his
purpose to be a constituent instead of a Repre-
entative. though he possibly might continue to
erve in the latter character during the next
Congress.
Mr. Bacon said, he did not rise to enter into the
lebate. He rose to make himself understood,
^hen he acted, he must act for himself, and pur-
ue his own judgment, though he stood atone,
rhe resolution was predicated upon plain Demo-
cratic principles ; and he hoped never to be enga-
red in any cause that would constrain him to de-
icend to tne groveliing act of inquiring into the
;ecret motives of men.
He had long been of opinion that, in general,
he compensations have been too high in a Gov-
irqment like ours. He mieht be mistaken, but
iuch was his opinion. If the motion he submit-
ed was predicated upon true principles, he ex-
)ected it would be popular. He was sorry the
esolution had taken up ^Ye minutes' attention.
But the observations made by other gentlemen
lad induced him to reply. He said that he acted
n concert with men with whom he generally
igreed, but upon the merits of a specific question,
le must judge for himself. He concluded by
noving the insertion of five dollars a day.
Mr. GoDDARD had no doubt but that the degree
)f confidence the gentleman reposes in gentlemen
m\\ be reciprocated; but he could not refrain
*rom reading^ a resolution passed on the fourteenth
}f January last.
[Here Mr. G. read an extract from the Journal,
containing a resolution appointing a committee,
on which Mr. BAcoti was named, to inquire into
the expediency of making reductions in the Civil
List.J
Mr. T. Morris said his object was to insert four
dollars fbr each -member, and six dollars for the
Speaker.
Mr. Elmer felt very little anxiety respecting
the fate of the motion ; nor did he know tnat the
compensation did not stand at a just rate. But he
hoped gentlemen would be actuated by the public
good, and not carried away by party motives. He
would rather that the compensation should be re-
duced to five dollars. It was certain that gentle-
men in lucrative professions made great sacrifices.
But it did not comport with the genius of the
Government, or the habits of the people to make
compensations, for public service, tnat were lucra-
tive. Five dollars might answer, but two dollars
were certainly inadequate.
Mr. MiLLEDGB said it was clearly bis opinion,
that six dollars were little enough. But if gen-
tlemen are making sacrifices, he was ready to go
as far as they pleased. If they are for reducing,
let them do it handsomely, and show the extent
of their patriotism.
Mr. D. Heister moved to add, '' during the
present session of Congress." ^
Mr. S. Smith said, he had always thought six
dollars a proper allowance. But ii a majority of
the House should be willing to make sacrifices,
he would not differ with them ; he had never con-
sidered the pay as an object. He had been some
time in public service, and never saved anything
from his pay ; he had generally found his expenses
exceed his allowance.. But it a majority were of
opinion that one dollar was sufficient^ he was wil-
ling ; if for nothing, he had no objection a^ to
himself.
Mr. Bayard hoped it would be remembered,
that the proposition to reduce the compensation
to two dollars a day was not his. It was not his
object to turn the business into ridicule ; or with
the gentleman from Maryland, to vote for two
dollars, or one dollar, or no dollar, >as that gentle-
man said be had beeix in the habit of serving his
country. He had wished to see the compensation
fixed at a moderate and reasonable sum. This
had comported with his serious views. But as
gentlemen were disposed to make a flagrant dis-
play of their patriotism, he was willing to go with
them, and to sacrifice with them, hecause he
thought that, while we are sacrificing others, we
ought to make some sacrifices ourselves.
Mr. Holland was opposed to the, resolution,
and to every amendment which had been offered.
He believed six dollars, at the commencement of
the Government, was sufficient, and much mor^
ample than at present. The Legislature had seen
fit to continue that compensation to th^ present
day, and he believed the expenses of livings were
not now reduced. There was, therefore, in his
mind no necessity for inquiry. He had another
reason for being against the motion ; and that was
his wish, that our successors may be as well ac-
commodated as we are.
Mr. S. Smith said, he had intended to make
some explanation on the misrepresentations of the
gentleman from Delaware. But, on reflection, he
was convinced that the House was so well able to
understand the manner in which that gentleman
acts, that they will be able, on this occasion, to
jud^e, without any explanation from him.
Mr. J. C. Smith said it must be evident to the
House, that the resolution of the fourth of Jana-
1083
HISTORY OF CONGRESS.
]^.
H. OF R.
Salaries of Officers.
March.
ary, involved the object of the present motion.
To the committee then appointed, it was certain-
ly most correct to refer this motion, thouG^h he
did not know why that committee had not yet re-
ported. He therefore moved the reference of the
motion to that committee.
Mr. GfiiswoLn said he had contemplated, at a
future stage of the business, the instructing that
committee to make this inquiry. It certainly was
the correct course to refer the motion to that com-
mittee, which was under the superintendance of
the gentleman from Massachusetts, (Mr. Bacon.)
As that committee had slept from the fourth of
January, and 'as their nap had been a very long
one, it might be time to awaken them.
Mr. Bacon observed that, as he was called on
as chairman of the committee alluded to, to ren-
der an account, he would state that the commit-
tee had met early and repeatedly ; that they had
thought it expedient to refer to the heads of de-
partments for information. They were informed
that .there would be a document, in a short time,
presented, that would afford them better informa-
tion than any which could then be furnished.
They would, notwithstanding, hare progressed,
but for a chanffe in the committee ;.one gentleman
had quitted his seat in the House, and another
(the Chairman) had obtained leave of absence.
Mr. J. C. Smith said that the mode pointed out
by his colleague was the most correct. But his
oDJect, in the motion he had offered, was to pre-
clude this useless and unpleasant discussion.
Mr. Elmbnoorf thought the reference perfectly
useless. As a member of that committee, he had
expressed his opposition to the proposed reduction.
Mr. Nicholson did not know a stronger reason
for that reference.
Mr. Dana declared himself in favor of a reduc-
tion. He had no hesitation to say that the com-
pensation of six dollars was not too much. But
under present circumstances, gentlemen might ex-
pect bim to go full length, that they may them-
selves feel the force of their own acts, fie was,
therefore, for the reference, and to that particular
committee.
The question was then taken on the motion of
Mr. J. C. Smith to refer Mr. Bacon's motion to
the committee appointed on the fourth of January,
and carried.
• SALARIES OF OFFICERS.
The bill reported from the Committee of the
Whole, to continue in force an act, entitled "An
act to augment the salaries of certain officers
therein mentioned," was taken up.
The amendment agreed to in tne Committee to
limit the duration of the law to two years instead
of thrc«, was agreed to.
Mr. J. C. Smith said that, as he was fully im-
E reused with the propriety of the motion which
e had made in Committee, he could not, not-
withstanding its fate, agree to abandon it. He
believed it most fair that the compensations al-
lowed to officers should appear on the face of the
bill, instead of referring to an old law. He there-
fore moved to strike out the words " said act be re-
vived, "dec, and that the followiD? wonissb?:!!
be introduced, *^the following salaries ^h
allowed to the Secretary of Sute," &c
This motion was supported by Mes^J.'
Smith, Dana, Griswolo, Elmbb, Hugei >! e
Ris, GoDDARO,and Bacon; and opposed bf Me-:^
Gregg, S. Smith, Nicholson. ViRnrx.}::
Giles.
Those who supported the motion coot-tk
that no analogous instance to the present bill 'u
be found; that there was no instance inwh:>:
law had actually expired being revived. tod at :
effect from the period of expiration; tbitthea
intended to be restored, had expired on ibe3h
December last ; and that the present law vai:
fact, a new proposition, to augment the sall"^{:
several of the heads of departments, from $3<
to $5,000, d^. ; that though the^r had doc^,^
tion to continue most of the salaries at then r^
mented amount, there might be some oi iliec.*?
pensations that did not bear a proper propor^:
to the rest; that this was actually thecal r:
respect to the Secretary of the Navy and of W«
and the Attorney General; the twofom^f?
which were not sufficiently high, and Ufii-'v
which appeared to be tjie most useless rfail a
offices, from the officer absenting himi6(scf!^
quently from the seat of Governmeoi, « 'oc
high ; that it would be invidious tobe coieirt^.
from the manner in which the bill wasMtt:
move a distinct proviso in the case of a part :>i
officer thus circumstanced ; that manyofUfT
sent members of the House were oot io the !/i?
lature when these compensations were fimi;^
that thev ought to have an opportuniiT <i *
paring tnem with each other; thatiboBf*
present Secretary of the Treasory had l^-
voted against the increase of salary, that ««•*
no inducement with them to vote against it :2j
if it were meant, bv gentlemen who broBif: :
the bill, to conceal from the people that ih«*»
aries were augmented by the present Lei^si*:^
they would be deceived ; that they would, «i^
other hand, gain credit by an open arowik J*
fact; if this was not done, it would besaii-'^
are gentlemen who have been decbimiii^>^^
high salaries until they obtain tbeofficoi--
Government, and then they allow those hi?*'
aries, and attempt to conceal the allowan«: 3^
the late salaries, being predicated aponasti'^-
war. might, perhaps, be too high for penji-^
salaries; and if so, required reduction ; tw •
order to determine the point, each salary""^
appear on the face of the bill ; and this wt.<^
in conformity to the universal practice c: ^
House, which, in all cases where a lawW
vived which involved a principle implicatic:^
tails, had revived the law, not generally, b«'-*'
cifically, as to those details, thereby gi"'? ^
opportunity to the members of the House uci^
iry or vary those details.
Those who opposed the motion denied t^e-
curacy of the precedents alluded to by thep»'
men on the other side; and contended t^ij' •;
similar acts to the present had beea ^^'^ ^^
similar style ; that this had been iavamhif^
1085
HISTORY OF CONGRESS.
1086
March, 1802.
Salaries of Officers.
H. opR.
frequently the case; they professed themselves
astonished at hearing it said that the present course
pursued was unfair; if unfair, gentlemen had
themselves set the example ; an example set in
ere ry deliberative body in the world, practised in
the British Parliament, and, it was believed, in
every body where the parliamentary mode of
transacting business was adopted ; nor was it be>
lieved that it precluded any proposition of amend-
ment : as to salaries, it was deemed correct to
continue them, without alteration, as they had
for several years stood, and as they nad been fixed
by the gentlemen who now opposed the bill. If
there was any disposition to vary them, the ob-
jections of gentlemen mi^ht apply. With respect
to the compensation allowed to the Attorney
General, it was the same with that which had
been permanently fixed ; an additional compeosa-
tion bad been allowed him for prosecuting claims
under the British Treaty, but that sum was not
included in the salary allowed in the bill ; that, as
to the imputation attempted to be fixed, of a dis-
position to conceal from the people the efiects of
this bill, it was absurd, as the people were well
acquainted with the details of the law to which
this bill referred, and no misappreheosion could
take place, except from intentional deception.
The amendment of Mr. Smith was lost — yeas
37, nays 46, as follows :
Ybab — John Bacon, James A. Bayard, Walter Bowie,
John Campbell, Manaaseh Cutler, Samuel W. Dana,
John Davenport, Thomaa T, Davis, Ebenezer Elmer,
Abiel Foster, Calvin Goddard, Edwin Gray, Roger
Griawold, William Barry Grove, Seth Hastings, Joseph
Hemphill, William H. Hill, WUliam Hoge, Benjamin
Huger, Thomas Lowndes, Lewis R. Morris, Thomas
Morris, Joseph Pierce, Nathan Read, John Cotton
Smith, John Stanley, John Stratton, Benjamin Tall-
madge, Samuel Tenney, David Thomas, Thomas Till-
inghast, George B. Upham, Isaac Van Home, Killlan
K. Van Rensselaer, Benjamin Walker, Lemuel Wil-
liams, and Henry Woods.
Nat8~ Willis Alston, John Archer, Theodorus Bailey,
Robert Brown, William Butler, Samuel J. Cabell, Tho-
mas Claiborne, Matthew Clay, John Clopton, John
Condi(> Richarid Cutts, John Dawson, Lucas Elmen-
dorf, John Fowler, Andrew Gregg, John A. Hanna,
Daniel Heister, William Helms, James Holland, David
Holmes, George Jackson, Charles Johnson, John Mil-
ledge, Samuel L. Mitchill, Thomas Moore, Thomas
Newton, jr., Joseph H. Nicholson, John Randolph, jr.,
John SmUie, Israel Smith, John Smith, of New York,
John Smith, of Virginia, Josiah Smith, Samuel Smith,
Henxy Southard, Richard Stanford, Joseph Stanton, jr.,
John Stewart, John Taliaferro, jr., Philip R. Thompson,
Abram Trigg, John Trigg, Philip Van Cortlandt, John
P. Van Ness, Joseph B. Varnum, and Robert Williams.
' The question was then taken on engrossing the
bill, and carried — yeas 39, nays 30.
Frioay, March 26.
Mr. John Cotton Smith, from the Committee
of Claims, who were instructed, on the fifteenth
instant, ^ to inquire whether any further compen-
sation than is already provided by law, ought to
be made to the Commiasioners of the Direct Tax,
or any of them," made a report thereon; which
was read, and ordered to lie on the table.'
The House proceeded to consider the amend-
ments proposed by the Semite, to the bill, entitled
An act for the rebuilding the licifht-house on Gur-
net Point, at the entrance of Plymouth harbor;
for rebuilding the light-house at the eastern end
of Newcastle Island ; for erecting a light-house on
Lynde's Point, and for other purposes : Where-
upon,
Ordered, That the said ainendments, together
with the bill, be committed to the Committee of
Commerce and Manufactures.
Oq motion of Mr. Jackson, it was
JReaolvedj That the Committee of Ways and
Means be instructed to inquire into the expediency
or inexpediency of authorizing the Secretary of
the Treasury to remit the duties, in all ca^es, which
have accrued, or may accrue, on spirits distilled,
and on stills, within the United States, upon satis-
factory proof being made to the said Secretary,
that such stills, or distilling materials, have been
accidentally destroyed by fire, rendered useless bv an
inundation of water, or other unavoidabe casualty ;
and that the said committee have leave to report
thereon by bill or otherwise.
.The House resolved itself into a Committee of
the Whole on the bill to amend an act, entitled
^'An act to retain a further sum on drawbacks for
the expenses incident to the allowance and pay-
ment thereof, and in lieu of stamp duties on deben-
tures;" and, after some time spent therein, the
Committee rose and reported the bill witn an
amendment which was twice read, and agreed to
by the House.
Ordered, That the said bill, with the amend-
ment, be engrossed, and read the third time to-
morrow.
A message from the Senate, informed the House
that the Senate have passed a bill, entitled "An
act making appropriation for defraying the expense
of a negotiation with the British Government to
ascertain the boundary line between 'the United
States and Upper Canada;" to which they desire
the concurrence of this House.
The said bill was read twice and committed to
a Committee of the whole House.
TheHouse*went into Committee of the ViThole
on the report of a select committee for admitting
the Northwestern Territory as a State into the
Union.
Without proceeding to the discussion of the
report, the Committee, rose in consequence of an
intimation made by Mr. Hastings, that Mr. Fear-
U>iG, the Delegate of the Northwestern Territory,
was absent from indisposition, and that rt was his
wish to be present when the report was discussed.
Upon motion of Mr. Davis, the House went into
Committee of the V^holeon tne bill respecting the
location of military land warrants.
Mr. Davis moved an amendment restricting the
right of location to original holders of warrants^
lost without a division.
Several amendments were made, affecting the
details of the bill ; when the Comikiittee rose, and
some of the amendments were agreed to, and tha
1087
HISTORY OF CONGRESS.
m
H. OF R.
Salaries of Officers,
VikUiAM.
bill ordered to be engrossed for a third reading to-
morrow!
Mr. S. Smith presented a petition from the cit-
izens of Washington, praying that such a system
of ioternai governmeDt, or police, may be adopted,
as Congress shall see fit. — Referred to the Terri-
torial Committee.
SALARIES OF OFFICERS.
An engrossed bill to continue in force an act.
entitled "An act to augment the salaries of certain
officers therein mentioned," passed the second day
of March, one thousand seven hundred and ninety-
nine, was read the third time.
Mr. Dawson. — I voted against the jaw of 1799,
which increased the salaries of certain officers of
our Government, and I propose now to vote for
that bill which continues the augmentation. I
will state to this House the reasons for these my
votes, in a concise manner; for, sir, on this and on
all occasions, I shall avoid going into arguments
which do not bear on the question, and the only
effect of which is a waste of our time and of
the public money. I will not inquire what is
the state in which a gentleman ought to live,
and what are the expenses attendant thereon ; 1
will not inquire whether all or any of our officers
do live in that state. These, sir, are questions
which we are not in duty bound to examine.
The duties of our public officers, and a proper
compensation for services, are the only questions
which it belongs to us to examine.
Sir. it must be remembered by you, and by
every gentleman of this House, and especially by
those who were members in 1799, what was our
situation at that time ; we were constantly told
that we were threatened with a foreign war, and
were called on to make exertions to meet the dan-
ger. Every means in our power were resorted
to: armies were raised, and fleets set on float;
taxes of various kinds were imposed to meet these
expenses, and individuals were invited to make
sacrifices; loans at eight per cent, were negotia-
ted, and voluntary contributions were solicited.
At a time like that, and under such circumstances,
I did think it unjust. I did think it impolitic, to
raise the salaries of any set of men ; and it was
for this reason, and for this chiefly, that I voted
against the augmentation ; for, permit me here to
observe, that while I am an advocate for putting
down all useless and expensive offices, my decided
opinion ever has been, that we should pay well
those we do retain. This, in my judgment, is
right; it is just; I believe it to be politic, and I
am sure it is sound republicanism.
Our situation is different now from what it was
in 1799; none of the causes which I have men-
tioned do now exist, and it is for that reason, in
Fart, that I shall vote now differently from what
did at that time.
There are other reasons, sir, in forming an opin-
ion on the question now before us — the know-
ledge of facts which every gentleman must pos-
sess, and his own experience thereon must fur-
nish the best data, &nd assist his judgment more
than any observations which can be made on this
floor. E very gentleman must know what aie i^
official duties of our public officers, aod eter
gentleman must feel what are the expeQ$^> :
living at this place, and from thence what bi
proper compensation.
I believe, sir, that most gentlemen will uiit
with me in saying, that those who iDformcsuii
the expenses of living are less than they wm 13
1799 ; that they are less in Washington thao dfy
were in Philadelphia, are wofaily misiakn.ci
perience has taught to me the contrary, aoii::
nas not to other gentlemen, I congratulaiettea
thereon. »
Sir, there is one consideration which hus:
been mentioned, which, although not coQCiusiit
I own has some weight with me. When iite>>
gentlemen, some of tnem at least, came intodbt
these were the salaries then established; tbeyut
reason to conclude they would be continotd a-
cept there was good reasons to the contrary. N^:.
sir, do exist; and while no attempt is maiie is
raise salaries, according to the constant pfactt!f
heretofore, wnile the expenses are at least eq^
to what they ever were, and the inconTeai*Ks
of living greater, I do think it would be up-
now to diminish them.
For these reasons, I shall vote forlarisfis?
salaries as they now are, although I vote^ii^^
the increase In 1799, under the then situaus i
the country.
Mr. GoocARD.— I did not think of risiB:E^
day, nor should I now rise but for ther«ffi«:
made by the gentleman from Virginia. \'sp-
no necessity for making an apology totbeHii^
for any apparent inconsistency of vole ontb;?.:
casion, as 1 have never before voted on tbe?:-
ject, not having had, when the bill alludf'-
passed, the honor of a seat on this floor. Toisi
however, the reasons of the honorable gentl«';-
appear very inconclusive. He says ihalial *
such was the situation of the country, thai fj^
citizen was called upon to make a sacrifice cU'
personal interests. But if the sitaation cl '-'^
country was at that period such as called Kri^
orifices, was it not also such as required ii< ••
curring additional expenses and new debts: i-
is not our present situation such as reqnires a fi^
ment of the debts then contracted?
The gentleman has also observed, that t:^^
in office accepted their places under an eip«»
tion that the old salaries would be conii:"^
Strange! Did they not know that the law 5i::
those salaries was limited in its duration? T^j
cannot, therefore, with any appearance of ji^"
say that the good faith of the GovernmKi-
pledged to continue those salaries. lappreiiesi-
the contrary, they had good reason to expeci-i'
would be discontinued, because these veryg?-*
men had declared to the nation that theexpe^-^
of the Government had been profuse; thai-'
salaries of public officers had been too high- 1'-
they ought to have calculated that the system
economy they are for applying to others w>
albo be extended to them. ^
The other reason assigned by the gentlefl*!^
the pjresent increased expense of liTiog"-'^ ^
1089
HISTORY OF CONGRESS.
1090
March, .1802.
Salaries of Officers,
H. OP R.
correct. Whatever the present expenses may be,
it is not probable that the expenses 'for the ensu-
iDf two or three years will be so great as those
which succeeded the passage of the law proposed
to be re-eDacted. The greatest part of the Euro-
pean world was then at war — now there is peace ;
and it may rationally be expected that there will
be a gradual appreciation of money, and that the
price of articles of consumption and rents will
fall. I do not believe that all the salaries are too
high ; but I do believe that some are, and that
the proportion between them is not correct. For
these reasons I am compelled to vote against the
whole bill.
Mr. Smilie. — The yeas and nays are called for
by gentlemen, aitd I am glad of it. I have no
diffidence to record my opinion. I am happy
that, in my vote on this occasion, I shall not be
obliged to depart from the principle on which I
have always acted, viz : that it is beneficial to the
community that the officers of Government should
be supported in a reputable manner. I never de-
viated from this principle, either in the Legisla-
ture of Pennsylvania, or in Congress, except-
ing in one instance, for which I can easily ac-
count. Nor have I ever varied my vote in con-
sequence of any particular person being in office;
for I have always considered the emoluments al-
lowed as attached to the office and not to the of-
ficer. The case to which I allude is the compen-
sation given to the iudges last year. I voted for
a smaller one than that which ootained. But as I
was adverse to the establishment, and thought it
would soon be set aside, I do not think the vote
given on that occasion a deviation from the
principle.
I believe it is good policy, in a republican gov-
ernment, so to support your public officers, as to
command the first talents in the country. Many
of the officers, whose salaries are fixed in the bill,
are of this character, and on whose talents de-
pend, in a great degree^ the honor of the Govern-
ment. I believe salaries ought to be neither so
high as to make the fortune of the officer, or so
low as to disable an individual from living com-
fortably. This is the golden mean.
I am not a little surprised, Mr. Speaker, to see
how the sentiments of gentlemen vary with cir-
cumstances. We had some time since before as a
bill for reducing the compensations of certain col-
lectors of ports. I know that, on that occasion,
many members were in favor of reducing some
of the compensations ; but I do not recollect that
any member was for reducing the compensation
of those collectors who received within $5,000.
And yet now we find gentlemen opposing the
same allowance to these high and respectable
officers.
I believe this measure will prove perfectly agree-
able to the people, and that it will be approved by
their good sense. Much has been said about the
expenses of living, and some gentlemen have said
those expenses have not increased. But I have
only to appeal to themselves to know whether the
expenses of living here are not greater than in
Philadelphia. For my part I have experienced
7th Con.— 35
a considerable increase, and I have no reason to
infer that other gentlemen have not felt the same
increase.
Mr. T. Morris. — I shall vote against the bill,
not because I object to the greater part of the sal-
aries, but because it is so drawn as not to enable U9
to discriminate respecting the several salaries, be*
ing obliged to vote in lump for or against the
whole of it. It is not material to me whether the
gentleman from Virginia (Mr. Dawson) has act-
ed consistently or not. Be that as it may, I must
act from my own conviction. I am desirous of
making a^ necessary and proper provision for our
public officers. I would not even deny to the
present Secretary of the Treasury the additional
allowance of this bill, because, when on this floor,
he denied it to his predecessor. To the salary of
the Secretary of the Navy I would be fflad to
make an addition, because I believe that his da-
ties are as laborious as those of the other Secre-
taries. As to the expense of living, I do not be-
lieve it is comparatively so great to the officers
provided for in thi^bill as to us, as they make ar-
rangements for the whole year.
Mr. Alston. — The very reason which will in-
duce the gentleman last up, from New York,
(Mr. T. Morris,) to give his vote against the
passage of the bill upon the table, is the reason
which induces me to give it my support and as-
sent. For if the salary of any one of the officers
which that bill contemplates the continuing in
force, was to be changed or lessened, I would most
assuredly vote against the whole bill. I have
heard no objection, specifically made, to any one
of the salaries, except that of the Attorney Gen-
eral, and if even an alteration had been made in
his salary from what had been heretofore es-
tablished by law, I should give my negative to
the bill.
The uniform practice of reviving and contin-
uing old laws in force for a longer time,. ever
since the establishment of the present Govern-
ment, has been the very course now pursued by
the Committee of Revisal and Unfinished Busi-
ness, who reported this bill.
I can see no reason why the present officers of
Government should not receive the same compen-
sation that had heretofore been allowed to others.
I really believe that if gentlemen were to go into
an investigation of the salary of every officer
which it was proposed to continue in force, that
they would be satisfied that a saving could not be
made worth the detail of a bill, and that if the
alteration which gentlemen contended for, had
been made in the lorm of the bill, and the small-
est alteration had been made in the salary of
any one of the officers from that from which
they had heretofore been accustomed to receive,
it would have been, in my opinion, a sufficient
cause to justify a rejection of the bill. I, there-
fore, hope the Dili may be permitted to pass in its
present form.
Mr. TALLMAnoE. — I am against the passage of
the bill, because I think the form of it improper,
and because I do not believe that the reasons now
exist which formerly induced the Legislature to
1091
HISTORY OF CONGRESS.
W^.
H. OP R.
Salarus of Officers,
MiBCH, \y.
pass the law now proposed to be revived. My
first objection arises from the rejection of every
amendment that has been offered. Had the
amendments prevailed, I should have voted for
the great outlines of the bill. I am a friend to
liberal salaries; but inasmuch a^fwe are prevent-
ed from apportioning the salaries. I am against
the whole bill.
With respect to my second objection, I must
remark that the old salaries were fixed on war
prices ; and this was the reason whv the Legisla-
ture limited the duration of the ola law to three
years, expecting that, by the removal ^f the seat
of Government; and the termination of the war,
a reduction in the expenses of living would take
place. I cannot agree that the expenses here
are greater than in Philadelphia. But. provisions
and labor are certainly lower here than there, and
the effects of peace will make them still lower.
I will not say that I shall be influenced to vote
against the bill because one of the officers voted
against the augmentation. Such prejudices shall
have no influence with me. I have made these
remarks because I am unwilling that my vote
should go abroad without my reasons against the
bill. If gentlemen had given us an opportunity
to vary the compensation, I will not say that I
would not have nnally assented to the bill ; and
if the bill had been detailed, and a majority of
the House had agreed to all its parts as it now
stands, I might even then have assented to it. But
under existing circumstances I cannot.
Mr. Bacon. — Having, heretofore, expressed my
own sentiments on the subject of >alaries and com-
pensations for public services in general, in a Gov-
ernment like ours, I should not have attempted to
say anything further on the question had it not
been from a consideration of the manner in which
the resolution has been treated, which I had the
honor yesterday to lay before the House. Al-
though that resolution* has been committed to a
special committee, yet, from the manner in which
it has been treated by gentlemen on both sides,
and in all parts of the House, it seems to be ap-
parent that there exists almost a unanimous de-
termination not to make any reduction from our
own pay.
I conceive it to be highly important, not only
that legislative bodies should act, but that they
should appear to act with uniformity. And in
nothing is this uniformity of conduct more im-
portant than in the apportionment of compensa-
tions for services among the various descriptions
of men who perform them. The appearance of
partiality in the Legislature, especially in their
own tavor, is peculiarly odious ; and in proportion
as it is odious, it is hurtful, to the Government.
No evidence has yet been adduced to show that
the present apportionment of salaries and com-
pensations is not equal and just. If it is not, who
but former majorities were responsible for any
inequalities that may exist ? The present appor-
tionment is the resuitof actual experiment, which
is said to be the best evidence with respect to pro-
priety of conduct in the management of human
affairs.
At the coqamencement of the GoreniiDKL:
pay of the members of Congress was sei tata:-
as it now stands. The salaries of those ciri! i
cers which are named in the present bdv^
then set considerably lower than what ii<t\ n
are. The establishment of salaries and cca:^
sations which was first made, neither wikl-
could be. any other than an establishmeo: ci
periment. it was found by experience. afierpr
eral years practice, that the apponionmestrc
unequal ; that the payment of the SeoatintL
Representatives was out of proportion to to:,
the officers named in the bill. Our predere^'
therefore, who were then in the majority, iacrd^
ed the salaries of the latter, while they penr %
their own pay to remain as it was first esuL:-
ed. This, it must be presumed, was rooD^.i
in fact the case, unless we conclude that the C.:-
^ress at that time established a s^rstemofiir.::
ism, the most distant idea of which mar ssi*
indulged.
It has beeUj and still is, a prerailmg o^i
with me, that m a Government likeoofiixs^
aries and compensations established byb»r.
generally too high, and I sincerely wishtiiftsr
might be uniformly reduced. At theast-i;
I cannot feel myself justified in giviof!^!*-
to reduce the compensation of others. wLii'iQ*-
appears to be no disposition to lower c«rT.
This, in my opinion, would indicate aaui^^t'
gard to our own private interest, and liFeoca.:
to our adversaries to speak reproachfullTif.i
Mr. Nicholson.— I will state but a sinfkr
I have heard only one salary objected to b^'- j
tiemen as too high, viz: that of tbe Ai:.^'
General. They have informed the Hoiw^j
the annual allowance of six haodred dollar '-^
been made that officer in consideration of sen'
rendered under the British Treaty. It ^ -
that sum was allowed in 1797. Atthaitst^
salary was $2,000.' In 1799, when ihek»:'
proposed to be revived, was passed, the ssj:!^-
fixed at $3,000. The then Attorney Gtotxc
the present Attorney General, both drewtr:^
time 83,600. But the operations under i£r<^-
article of the British Treaty must now «8»^^
of course the additional six hundred doila:^;^
also cease; the salary will hereafter stand as-'
by the act of 1799, and there can exist bo :^^-
in consequence of a diminution of serried i'<
from the termination of the operations ottw^-
article of the treaty, for a diminution of die s^
salary. ^
Mr. Elmer said, he had thought the amcs-^
offered proper, but as it had not been cam'i^
would pursue a different line of conduct tma^
pursued by the gentleman from GonDfr'^
Though he might not be of opinion that il*''^
an exact proportion preserved in the coa^
tions made to the several* officers, yet as t? •
satisfied with the general provisions of tb<^-'
would vote for it. , ^ -
Mr. Claiborne declared himself in fa^'*^^
Mr. Hastings against the passage of t^
when the question was taken by yeas aw*
and carried — yieas 50, nays 22, as follows:
1093
HISTORY OF CONGRESS.
1094
March, 1802.
Salaries of Officers.
H. opR.
YxAs — Willis Alston, John Archer, John Bacon,
Theodonis Bailey, Phanuel Bishop, Walter Bowie,
Robert Brown, William Butler, John Campbell, Thom-
as Claiborne, John Clopton, John Condit, Richard
Cutts, John Dawson, Lucas Elmendorf, Ebenezer El-
mer, William Eustis, John Fowler, William B. Giles,
Edwin Gray, Andrew Gregg, John A. Hanna, Daniel
Heister, William Helms, William H. Hill, James Hol-
land, Benjamin Huger, William Jones, John Milledge,
Samuel L. Mitchill, Anthony New, Thomas N^ton,
jr^ Joseph H. Nicholson, Thomas Plater, John Ran-
dolph, jr., John Smilie, Israel Smith, John Smith, of
New York, Josiah Smith, Samuel Smith, Henry South-
ard, John Stanley, Joseph Stanton, jr., John Taliaferro,
jr., Samuel Tenney, Abram Trigg, Philip Van Cort-
landt, John P. Van Ness, Joseph B. Yarnum, and Kil-
lian K. Van Rensselaer.
Nats — Samuel J. Cabell, Thomas T. Davis, Abiel
Foster, Calvin Goddard, Seth Hastings, William Hoge,
David Holmes, George Jackson, Ebenezer Mattoon,
Thomas Moore, Thomas Morris, Joseph Pierce, Richard
Stanford, John Stewart, John Stratton, Benjamin Tall-
madge, David Thomas, Thomas Tillinghast, John
"Frigg, Isaac Van Home, Benjamin Walker, and Rob-
ert Williams.
Resolved, That the title be, "An act to revive?
and continue in force, an act, entitled 'An act to
augment the salaries of the officers therein men
tioned,'' passed the second day of March, one thou-
sand seven hundred and ninetv-nine.
The said bill was then furtner amended at the
Clerk'.*f table ; and, together with the amendments
agreed to, ordered to be engrossed, and read the
third time to-morrow.
Saturday. March 27.
An en^ossed bill in addition to an act, entitled
''An act m addition to an act regulating the grants
of land appropriated for military services, and for
the Society of the United Brethren for propaga-
ting the Cfospel among the Heathen," was read
the third time and passed.
An engrossed bill to amend an act, entitled "An
act to retain a further sum on drawbacks for the
expenses incident to the allowance and payment
thereof, and in lieu of stamp duties on debentures,"
iva5 read the third time : whereupon,
Ordered^ That the farther consideration of the
said bill he postponed until Monday next.
A memorial of sundry merchants of the town
of Portsmouth, and its vicinity, in the State of
New Hampshire, was presented to the House and
read; praying relief in the case of depredations
committed on vessels and cargoes of the memoria-
lists, while in pursuit of their lawful commerce,
by the privateers of the French Republic, during
the late European war. — Referred.
A petition of the Mavor, Recorder, Aldermen,
and Common Council, of the Corporation of
Georgetown, in the District of Columbia, was pre-
sented to the House and read, praying that Con-
gress will empower the said Corporation to lay a
tax on landed property within the said town, and
its additions, for corporate purposes. — Referred.
Mr. Randolph, from the Committee of Ways
and Means, presented a bill making a partial ap-
propriation for the support of Government during
the year one thousand eight hundred and two;
which was read twice and committed to a Com-
mittee of the Whole House immediately.
The House, accordingly, went into the said
committee; and, after some time spent therein,
the Committee reported the bill wittiout amend-
ment, and it was ordered to be engrossed, and read
the third time to-day.
The House went into a Committee of the Whole
on the amendatory bill for the relief of Isaac Zane;
and, after some time spent therein, the Committee
reported the bill without amendment, and it was
ordered to be engrossed, and read the third time
on Monday next.
The House then resolved i^elf into a Com-
mittee of the Whole on the bill further to alter
ai)d establish certain post roads ; and, after some
time spent therein, the Committee rose and report-
ed several amendments thereto; which were read.
Ordered^ That the said bill, with the amend-
ments, be recommitted to Mr. Southard, Mr.
Archer, Mr. New, Mr. Boude, Mr. Butler, Mr.
Walker, and Mr. Lemuel Williams.
Monday, March 29.
«
An engrossed bill for the relief ot Isaac Zane
was read the third time and passed.
Mr. Davenport, from the Committee of Revisal
and Unfinished Business, presented a bill to regu-
late and fix the compensations of the officers of the
Senate and House of Representatives ; which was
read twice and committed to a Committee of the
Whole House on Wednesday next.
A Message was received from the President of
the United States, transmitting a statement by the
Marshal of Columbia, of thecondition, unavoida-
bly distressing, of the j^ersons committed to his
custody on civil or criminal process, and the ur-
g^ency for some legislative provisions for their relief.
The Message and the paoers accompanying the
same were read, and ordered to be referred to
the committee appointed on the eighth of Decem-
ber last,'* to inquire whether any, and, if any, what
alterations or amendments maybe necessary in the
existing government and laws of the District of
Columbia."
The House proceeded to consider, at the Clerk^s
table, the report of the committee of the fourteenth
of December last, on the petition of James M'Cas-
hen and others, referred on the eighth of the same
month; Whereupon,
Resolved, That those persons who purchased
lands of John Cleves Syrames, prior to the first of
January, one thousand eight hundred, ought to
have further time allowed them to pay the money,
than is allowed by the act of Congress, of the third
of March', one thousand eight hundred and one.
Ordered^ That a bill or bills be brought in, pur-
suant to the said re^olution ; and that Mr. Davis
Mr. Hoge, and Mr. Fearino, do prepare and bring
in the same.
A message from the Senate informed the House
that the Senate have passed a bill, entitled "An
act for the better security of public money and
1095
HISTORY OF CONGRESS.
109«
H. opR*
District of Columbia — Drawbacks.
March, lyd.
property in the hands of public officers and agents;^'
to which they desire the concurrence ofthis House.
An engrossed bill, making a partial appropria-
tion for the support of Government, during the
year 1802, was read the third time and passed.
Previous to its passage, conversation look place
respecting an alleged loosness of appropriation.
This objection was made by Mr. Griswold, and
supported by Mr. Dana, who were of opinion that
the sum in the bill should be more specifically
appropriated.
The objection was repelled by Messrs. MiL-
LEDOE, Giles, Elmendorf, Randolph, and Al-
ston, who contended that the objection did not
apply, and that no inconvenience could arise from
a partial appropriation made in the bill and con-
tempated for a definitive object.
A motion made to recommit the bill was losjt^
when the bill passed — yeas 45.
DISTRICT OF COLUMBIA.
The order of the day was called for on the bill
respecting the government for the District of
Columbia.
Mr. T. Morris moved to postpone the consid-
eration of the bill till the 4th Monday of Novem-
ber next. •
Mr. Morris made this motion from a convic-
tion that the provisions of the bill were disai^ree-
ble to a great majority of the inhabitants. From
this circumstance it had been his opinion that the
bill would have been suffered to sleep.
Mr. Nicholson seconded the motion.
Mr. Bacon asked gentlemen to assign some spe-
cific reasons for the motion.
Mr. Nicholson said his specific reason for a
postponement was his dislike to the system laid
down in the bill. He believed that system, if es-
tablished, would prove very oppressive, from the
treat expense attending it. Another reason with
im was that the inhaoitants of the District are
very generally averse to it. Should the House
go into a Committee, he had no doubt, but that
after consuming days, the bill would be finally
rejected. The question of postponement would
determine the sense of the House respecting a
Territorial Legislature.
• Mr. Dennis said he had early taken up the
opinion, that it would be as well for the interest
of the United States as for that of the District, to
establish a svstem of local authority. But as no
person coula be more opposed to the provisions of
the bill than he was, and finding almost the whole
of the inhabitants as^ainst it. he should vote for
the postponement; though the principle which
the House was in favor of adopting mignt perhaps
be best settled by a motion to strike out the first
section of the bill. Should the House take up
the bill, he was prepared to move a number of
amendments, one of which would be for incor-
porating a Senatorial branch. Believing that the
present bill would be rejected, and that it was ne-
cessary for Congress immediately to dosomethinsT
in relation to the affairs of the territory, he would
vote in favor of the motion.
The question of postponement was pat aie
carried — yeas "42.
When on motion of Mr. Dennis, the Comal]:-
tee of the Whole was discharged from the forbe
consideration of the several subjects cooDKieJ
with the Territory, and reference made thereuf
to a select committee.
DRAWBACKS.
Tift House proceded to the further coDsidmia
of an engrossed bill to amend an act,eDiiiW'A:
act to retain a further sum on drawbacks fori^
expenses incident to the allowance and paynr:
thereof, and in lieu of stamp duties on debeotDre^r'
which was read the third time on Satardiy !t.<
Whereupon, a motion was made, and tbeqoestx
being put, that the said bill be recommitted to if
Committee of Commerce and Manufacturb. ;:
passed in the negative.
And then the main question being taken, '.u:
the same do pass, it was resolved in the affirioauTi
yeas 38, npys 32, as follows:
Natb— WiUifl AlBton, John Areher, John Bus.
Theodonis Bailey, Robert Brown, William Botkr. J«ii
Campbell, Thomas Claiborne, John Clopton, JibCc
dit, John Dawson,. John Dennis, Wiilian D;:^
Lucas Elmendorf, William Eustis, John F<fv«. A>
drew Gregg, John A. Hanna, Daniel HciikiW
Holmes, William Jones, John Millcdge, Sie«1 ^-
Mitchill, Anthony New, Thomas Newton, jwuiw?i
H. Nicholson, Thomas Plater, John Smilie,MnS-i
of New York, John Smith, of Virginia, Richan!^-
ford, John Stewart, Philip R, Thompson, AbmaTrr-
John Trigg, Joseph B. Vamum, Isaac VaaHww ss^
Robert Williams.
Natb— Phanuel Bishop, Thomas Boude, Mtf^
Clay, Manasseh Cutler, John Davenport, Tbo«j -
Davis, Ebenezcr Elmer, Calvin Goddard, Edwin w
Roger Griswold, WUliam Helms, William H. ^
William Hoge, Benjamin Huger, George J^
Charles Johnson, Lewis K. Morris, Thoma »^
Nathan Read, John Cotton Smith, Josiah Smith, m
Southard, John Stanley, Joseph Stanton, Jo«ephSB»s4
John Taliaferro, jr., Benjamin Tallm»dge,8iBi:dl*
ney, Thomas Tillinghast, KiUian K. Vtn Rae^
Benjamin Walker, and Heniy Woods.
Tuesday, March 30.
A petition of sundry members of the *l3*^
Catholic Church, residing in the city of Wa^i^
ton, was presented to the House and rejd.pn^
that Congress will grant them the pririlegeol^
ing by the means of one or more lotierie^ * •;^
cient sum of money to build and endow acbcK. -
the said city, for the accommodation and betf^-
the petitioners, and of. the religious sociei* ■
which they are attached. — Referred.
Mr. Edstis, from the Committee of Cojdd^
and Manufactures, to whom were referred. ^^ -
twenty-sixth instant, the bill, entitled "Aoar •
the rebuilding the light house on Gurnet Pot-;
the entrance of Plymouth harbor: forrebu;-
the light-house at the eastern end of Ney "^
Island ; for erecting a light house on Lynde>^ ■
and for other purposes/' and the amendmeflbr
posed by the Senate thereto, made a report >*'
1097
HISTORY OF CONGRESS.
March, 1802.
Northvestem Territory.
1098
H. OP R.
on ; which was read,* and together with the said
ameDdments of the Senate, ordered to be com-
mitted to a Committee of the whole House
to-morrow.
A Message was received from the President of the
United States, transmitting an estimate of expend-
itures for the Army of the United States, during
the year one thousand eight hundred and two.
The Message and papers transmitted therewith
were read^nd ordered to be referred to the Com-
mittee of Ways and Means.
The bill sent fcom ihe Senate, entitled "An
act for the better security of public money and
property in the hands of public officers and agents,"
was read twice and committed to a Committee of
the whole House on Monday next.
On a motion made and seconded that the House
do come to the following resolution :
Resolved, That, in case of the death of a member of
the House of Representatives at the seat of GoYernment,
while Congress is in session, the expenses accruing, in
conformity to an order of the House, made to testify
their respect for the deceased member, shall be paid out
of the contingent funds of the House, and not out of
his wages for travelling home, as is now allowed by
law :
Ordered, That the said motion be referred to
Mr. Davis. Mr. Lewis R. Morris, and Mr. Nich-
olson, to consider and report thereon to the House.
The Speaker laid before the House a letter
from the Secretary of State, enclosing a state-
ment of the application of the appropriations made
by Congress for clerk hire in his Department,
specifying the names of the persons, and the
salaries allowed to each, for the years one thousand
seven hundred and ninety-nine, one thousand eight
hundred, and one thousand eight hundred and one,
in pursuance of a resolution of this House of the
twenty-fifth instant ; which were read, and ordered
to lie OD the table.
NORTHWESTERN TERRITORY.
The House then went into a Committee of the
Whole, on the resolutions of a select committee,
respecting the admission of the Northwestern
Territory, as a State, into the Union.
[As the report of the select committee is ne-
cessary to elucidate the several points raised in the
liscussion, it is presented entire, as follows :
That it appears to your committee, that the ordi-
lance of the 13th of July, 1787, between the original
Hates and the people and States within the Territory
Northwest of the river Ohio, contains the following,
tipulation, that : " Whenever any of the said States
hall have sixty thousand free inhabitants therein, such
$tate shall be admitted by its Delegates into the Con-
press of the United States, on an equal footing with
he original States in all respects whatever ; and shall
•« at liberty to form a permanent constitution and
Male government : Provided the constitution and gov-
trnment, so to be formed, shall be Republican, and in
onformity to the principles contained in these articles ;
,nd so far as it can be consistent with the general in-
Brest of the Confederacy, such admission shall be al-
>wed at an earlier period, and when there may be a
>s8 number of free inhabitants in any State than sixty
tiousand.'' It also appears from the census of Uie in-
habitants within the Eastern division of the said Ter-
ritory, taken more than twelve months since, in virtue
of a law of the United States for that purpose, that
there were then in the said Eastern division, 45,365 in-
habitants, from which are to be deducted 3,400 inhab-
itants living north and west of the line proposed for the'
boundary of the said Eastern division.
It appears that, since the time of taking the census,
the United States have sold 563,996 acres of land within
the Eastern division of the Territory, amounting in
value to $1,147,586. It also appears from the best in-
formation to be procured, that, in the year 1794, the
number of inhabitants within the present Northern di-
vision of the Territory, did not exceed six thousand.
From the progressive increase of population since that
period, and Uie sale of lands recently made by the
United States, it is probable that, before all the meas-
ures necessary for the formation of a constitution, put^
ting into operation a State government, and its admis-
sion into the Union, can be effectuated, the number of
inhabitants will amount to sixty thousand, the number
requisite, according to the terms of the ordinance, for
giving them an absolute right of forming a constitution
and State government for themselves, as well as the
absolute right of admission into the Union, upon the
same footing with the original States in all respects
whatever.
It also appears to your committee, that great and in-
creasing disquietudes exist among the inhabitants
within the Territory frt>m various occasions, and partic-
ularly in consequence of the act lately passed for alter-
ing the boundary lines of the States in the Territory,
as established by the ordinance of the 13th of July,
1787.
Your committee, fit>m a due consideration of all the
foregoing circumstances, are of opinion that it is at
this time expedient to make provision for enabling the
people within the Eastern division of the Territory
Northwest of the river Ohio, to form for themselves a
constitution and State government, to be admitted into
the Union upon the same footing with the original
States in all respects whatever, and that such admis-
sion, at this time, is consistent with the general inter-
ests of the Confederacy, according to the said ordi-
nance, although the number of inhabitants may not
amount to sixty thousand. The committee, therefore,
recommend the following resolutions:
1st. Resolved, That provision ought, at this time, to
be made by law, for enabling the inhabitants of the
'Eastern division of the Territory Northwest of the
river Ohio to form for themselves a constitution and
State government, provided the same be republican,
and not repugnant to the ordinance for the government
of the Territory Northwest of the river Ohio, of the
Idth of July, 1787, nor repugnant to the Constitution
of the United States ; and also for the admission of
such State, when the government thereof shall be
formed, into the Union, upon the same footing with the
original States in all respects whatever, by the name of
the State of .
2d. Resolved, That the said State of , ought to
consist of all the territory included within the fol-
lowing boundaries, to wit : Bounded on the east by the
Pennsylvania line, running from the territorial line in
Lake Erie to the Ohio ; on the south by the Ohio to the
mouth of the Great Miami ; on the west by a line drawn
due north from the mouth of the Great Miami aforesaid ;
and on the north by an east and west line, drawn through
the southerly extreme of Lake Michigan, running east,
after intersecting the due north line aforesaid from the
1099
HISTORY OF CONGRESS.
H. OF R.
Northwestern .Territory,
1100
Mabch. l&i^.
moiitli of the Great Miami, until it shall intersect Lake
Erie or the territorial line, and thence with the same
through lake Erie to the Pennsylvania line aforesaid,
or place of beginning; provided. that Congress shall, at
any time hereafter, he at liberty either to attach all the
•territory lying east of the line, to be drawn due north
from the mouth of the Miami aforesaid, to the territo-
rial line, and north of an east and west lin& drawn
through the southerly extreme of Lake Michigan, run-
ning east as aforesaid to Lake Erie to the aforesaid
State, or dispose of it otherwise, in conformity to the
fifth article of the compact between the original States,
and the people and States to be formed in the Territory
Northwest of the Ohio.
3d. Resolved, That provision ought to be made by
law for calling a Convention within the Eastern divis-
ion of the Territory, to be composed of members to be
apportioned among the several counties therein, in a ratio
of one Representative for every inhabitants of the
■4id counties, according to the last enumeration of
inhabitants thereof; also, for fixing the time, place, and
mode of making elections of members to compose such
Convention, and the time and place for the meeting of
the same ; which Convention, when met, shall first de-
termine by a majority of the members present, provided
the number present shall be a majority of ihe whole
number chosen, whether it be or be not expedient at
that time, to form a constitution and State government
for the people within the said Territory, and if it be de-
termined to be expedient, then, in the next place, the
Convention shall be authorized to form a constitution
and State government, provided the same shall be Re-
publican, and not repugnant to the ordinance of the
13th of July, 1787, between the original States and
the people and States of the Territory Northwest of
the river Ohio, nor repugnant to the Constitution of
the United States.
4th. Resolved, That, until the next general census
shall be taken, the State of shall be entitled to
Representatives in the House of Representatives
of the United States.
The committee observe, in the ordinance for as-
certaining the mode of disposing of lands in the West-
em Territory of the 20th of May, 1785, the following
section, which, so far as respects the subject of schools,
remains unaltered :
" There shall be reserved for the United States, out
of every township, the four lots, being numbered 6, 11,
26, 29 ; and out of every fractional part of a township,
80 many lots of the same numbers as shall be found
thereon, for future sale* There shall be reserved lot
No. 16, of every township, for the maintenance of pub-
lic schools within the said township ; also, one-third
part of all gold, silver, lead, and copper mines, to be
sold, or otherwise disposed as Congress shall hereafter
direct"
The committee also * observe, in the third and
fourth articles of the ordinance of the 13th of July,
1787, the following stipulations, to wit:
*< Art. 3d. Religion, morality, and knowledge, being
necessary to good government and the happiness of
mankind, schools, and the means of education shall
forever be encouraged," &c.
" Art. 4Vh. The Legislatures of those districts, or
new States, shall never interfere with the primary dis-
posal of the soil by the United States in Congress as-
sembled, nor with any regulations Congress may find
necessary for securing the title in such soil to the bona
fide purdiasers. No tax shall be imposed on lands the
property of the United States ;• and in no case s^l
non-resident proprietors be taxed higher than Ro-
dents."
The committee, taking into oonsideraHon these it p>
ulations, viewing the lands of the United 8tata«i:k
the said Territory as an important source of nmit;
deeming it also of the highest impottancetothe^
bility and permanence of the union of the eastern tsi
western parts of the United States, that the iDterrcex
should, as far as possible, be facilitated ; and their z*
terests be liberally and mutually consulted aodprc<:>
ted ; are of opinion, that the provisions of the i&resd
articles may be varied for the reciprocal adnattie i
the United States, and the State of when fmti
and the people thereof; they have, therefore, iemti:
proper, in lieu of the ssiid provisions, to o£Eerthe£>!jc-
ing propositions^ to (he Convention of theEastm^
of the said Territory, when formed, for thdrfmir-
ceptance or rejection, without any condition or lotnis
whatever ; which, if accepted by the CouTentioi!, ^
be obligatory upon the United States :
1st. That the section No. 16, in every township xi,
or directed to be sold by the United States, ^ k
granted to the inhabitants of such townshipe, k Sf
use of schools.
2d. That the six-miles reservation, including ^^^
springs, commonly called Scioto salt springs, ii^ ^
granted to the State of when formed, iB:s«K
of the people thereof; the same to be usedmu?^
terms, conditions, and regulations, as the Lcfs*^
of the said State shall direct, provided thesucl^r.-
lature shall never sell, nor lease the same fer i )»^
term than years.
3d. That one-tenth part of the net proceeds o:'^
lands lying in the said State, hereafter sold by C^
gress, after deducting all expenses incident to the aV'
shall be applied to the laying out and making \s!t^
or other roads leading from the navigable vatene?>
tying into the Atlantic, to the Ohio, and contisw^^-
terwards through the State of , such roai* *<^ ^
laid out under the authority of Congrees vithtb(c«-
sent of the several States through which the i^d^
pass, provided that the Convention of the State of—
shall, on its part, assent, that every and each tw'
land sold by Congress, shall be and remain (vJr
from any tax laid by order or under autkoriiy <^'^
State, whether for State, county, township, or any ci^
purpose whatever, for the term of ten years, free «»
after the completion of the payment of the ^^
money on such tract, to the United Statea.
CiTT OF WASHiHOTOsr, Feb. 13, 1*-
Sib : I have examined, in consequence of oc: ^
versation, the articles of compact which makfpi^"'
the Territorial ordinance. The more I have red«i.*- ■
•the subject, the more fervently have I been iajpR*
with the importance of making some cfiedutl pr-
ions which may secure to the United States ^ F*
ceeds of the sales of the Western lands, sofaritl^
as the same may be necessary to discharge th£ f^
debt, for which they are solemnly pledged.
That part of the system of taxation, adoptfd is -
Northwestern Tenitory, which relates to non-ri^
owners, undoubtedly affects the value of the in-
lands, and will eventually diminish the amount ot s**'
Yet, upon due consideration, there is but one pro'-'*
which, in my opinion, would be inconsistent wii -^
rights of the United States, as secured bythctt'*
of compact. An attempt, on the part of tht U?^
1101
March, 1802.
HISTORY OF CONGRESS.
Norihweslem Territory
1102
H. OF R.
tare of the Territory or new State, to render lands, sold
under the laws of Congress, but for which no patent
has yet issued, liable to be sold for non-payment of
taxes, would interfere with the regulations adopted by
Congress for the ** primary disposal of the soil, since,
by theie, the lands remain mortgaged to the United
States, until aft*er complete payment of the purchase
money, and, in case of failure thereof, are directed to
be sold.
But it does not appear to me that the United States
haye a right to annex new conditions, not implied in the
articles of compact, limiting the Legislative right of tax-
ation of the Territory or new State. The limitations,
which they may rightAiIly impose, are designated
by the articles themselves, and these being unalterable
unless by common consent, all Legislative powers,
which of right pertain to an independent State, must
be exercised at the discretion of the Legislature of the
new State, unless limited either by the articles or by
the Constitution of the United States or of the State.
Indeed the United States have no greater right to an-
nex new limitations than the individual State may
have to infringe those of the original compact ; and I
cannot see that this position is in any degree altered
by the circumstance of admitting into the Union, in
pursuance of an express provision of the articles, a
State at an earlier period than that at which it must
necessarily be admitted.
The conditions inserted in the fourth article of the
compact in relation to that object, and which constitute
all that Congress thought at the time necessary to re-
serve in order to secure to the Union their right to the
soil, are : 1st, that the Legislatures of the districts or
new States shall never interfere with the primary dis-
posal of the soil by Congress, nor with regulations
which Congress may find necessary for securing the
title in such soil to the bona fide purchasers ; 2d, that
no tax shall be imposed on lands the property of the
United States ; and 3d, that in no case shall non-resi-
dent proprietors be taxed higher than residents. Far-
ther Oian that Congress cannot demand ; and it is on
account of the second provision that the district or
State Legislature has not a right to tax, or, at least to
sell, for non-payment of taxes, the lands on which, al-
though conditionally sold, the United States still retain
a lien.
It follows that, if it be in a high degnree, as I believe
it is, the interest of the United States to obtain some
further security against an injurious sale, under the
Territorial or State laws, of lands sold by them to indi-
viduals; justice not less than policy requires that it
should be obtained by common consent And as it is
not to be expected that the new State Legislature
should assent to any alterations in their system of tax-
ation which may affect the revenue of the State unless
an equivalent is offered which it may be their interest
to accept, I would submit the propriety of inserting in
the act of admission a clause or clauses to that effect,
leaving it altogether optional in the State Convention
or Legislature, to accept or reject the same.
The equivalent to be offered must be such as shall
not affect the value of the pledge which the public
creditors now have by the appropriation of the lands,
and as shall be fully acceptable to the State, and, at the
same time, prove generally beneficial either in a political
or commercial view to the Union at large. From the
best view I have been able to take of tibe subject, the
following provisions appear to me fully adequate to an-
swer those Aeveral objects, namely :
That, provided that the Convention or Legislature
of the State shall assent, that every and each tract
of land sold by Congress shall be and remain exempt
from any tax raised by or under the authority of the
State, whether for State, county, township, or any other
purpose, for the term of ten years, from and af^er the
completion of the payment of the purchase money on
such tract to the United States, the United States shall
on their part agree :
1st That the section No. 16 in every township sold
or directed to be sold by the United States shall be
granted to the inhabitants of such township for the u^e
of schools.
2d. That the six-miles reservation, including the salt
springs, commonly called the " Scioto salt springs,'^
shall be granted to the new State for the use of the peo-
ple thereof, the same to be used under such terms, con-
ditions, and regulations as the Legislature of the said
State shall direct, provided that the said Legislature
shall never sell nor lease the same for a longer time
than years.
3d. That one-tenth part of the net proceeds of the
lands lying in said State, hereafler sold by Congress,
afler deducting all expenses incident to the same, shall
be applied towards laying out and making turnpike
or oth^r roads, leading from the navigable waters emp-
tying into the Atlantic to the Ohio, and continued af-
terwards through the new State ; such roads to be laid
out under the authority of Congress, with the consent
of the several States through which the same shall pass.
That such conditions, instead of diminishing, woulc}
greatly increase the value of the lands, and therefore of
the pledge to the public creditors, and that they would
be lughly beneficial and acceptable to the people of the
new St^te, cannot be doubted. And they are particu-
larly recommended, as among the most eligible which
may be suggested, from the following considerations.
The provision fbr schools, exclusively of its intrinsic
usefulness, made a part of the former ordinance of Con-
gress for the sale of lands ; the grant has actually been
made in the sale to the Ohio company, and to John C.
Symmes ; and, although the ordinance be no longer in
force, and such a grant be no part of the articles of
compact, yet it has always been at least hoped by the
inhabitants of the Territory that it would be generally
extended.
The grant of the Scioto salt springs, will at present
be considered as the most valuable, and alone would,
most probably, induce a compliance, on the part of the
new State, with the condition proposed by Congress.
And if it is considered that at least one-half of the fu-
ture population of that district will draw their salt from
that source, the propriety of preventing the monopoly
of that article, falling into the hands of any private
individual, can hardly be disputed.
The tenth part of the proceeds of the lands, as it
will be coextensive with the sales, will continue to be
considered as an equivalent until the sales are complet-
ed, and after the present grant might have ceased to
operate on the minds of the people of the new State.
The roads will be as beneficial to the parts of the At-
lantic States, through which they are to pass, and near-
ly as much to a considerable portion of the Union, as
to the Northwestern Territory itself. But a due atten-
tion to the particular geographical situation of that Ter-
ritory and of the adjacent Western districts of the At
lantic States, will not fail to impress you strongly with
the importance of that provision, in a political point of
view, so far as it will contribute toward cementing the
1103
HISTORY OF CONGRESS.
H. OP R.
Northwestern Territory,
}Ainci.M
bonds of unioh between tbose parts of the United
States, whose local interests have been considered as
most dissimilar.
I have the honor to be, wi^ sincere respect, your
obedient servant,
ALBERT GAI.LATIN.
Hon. Mr. Giles, Chairman, ^c.
The first resolution being under consideration,
Mr. Fearing said he should oppose this resolu-
tion, but not on the ground of expediencjr. As
*he business had been urged forward hastily, he
had not'had an opportunity of consulting his con-
stituents, to many of whom he had forwarded the
report of the select committee on its being pre-
sented. He would, therefore, waive any remarks
on the expediency of it until a bill was brought in,
in the event of the resolution being agreed to, in
the mean time expecting to hear from his constit-
uents. But he was opposed to the resolution on
Constitutional principles. He conceived Congress
had nothing to do with the arrangements for call-
ing a Convention. It was neither necessary, on
general principles, nor under the compact, that
the Territory, in order to be admitted into the
Union, should form a constitution. By the 'com-
pact, Congress can give their assent to admit the
Territory into the Union before the population
amounts to sixty thousand. .Their power extends
no further. The compact is the supreme law of
the land, and is in the nature of a treaty. What
it prescribes must be executed ; but as to arrange-
ments not made in it. they may or may not be
made, and they may be made either by law, or by
a constitution, as the Territory may see fit* Can
Congress exercise powers given exclusively to the
people? He conceived it would be as great an
encroachment upon their rights to say they shall
meet together in Convention and form a constitu-
tion, a9 it would be to say so to any State in the
Union.
Gentlemen may say that this power is given to
Congress by the consent of the people. The print-
ed documents accompanying the report, if they
mean anything, mean to express the opinion of the
people. Among these is the letter of Samuel
Findley to T. Worthinglon. [Mr. F. here quoted
the concluding pan of the letter.] Now, if this
committee at Cnillicothe speaks tne voice of the
Western Territory, the Congress have the right
contended for; but this the citizens of other towns
and counties will not admit. What example
will the adoption of this measure hold out to the
people of the Territory ? If Congress violate the
compact, will not the people of that Territory
have an equal right to violate it? He hoped, for
these reasons, that Congress would, on their part,
preserve it inviolate.
Mr. Davis said he was as unwilling as any
member on that floor, or as the Delegate from the
Territory, to violate the compact ; nor did he be-
lieve Congress would violate it by adopting the
resolutions before them. Surely, to allow to the
people of the Territory the liberty to become a
State could not be considered as a violation of it.
The honorable gentleman says, the Territory may
come into the Union with or without a constitu-
tion, and yet the ordinance reads that "theyr.L
be at liberty to form a constitutioD, provideijitte
republican." It says, therefore, they shall fcrai
constitution on no other ground but its hfs;
republican.
When the population of the Territory- atooEt
to sixty thousand, ''it shall be admiitpd ini}t>
Union." This obligation is as binding upCDC:>
gress to admit, as upon the Territory tobeid&
ted into the Union. Suppose, then, vhtc&
Territory shall have reached a populatioa of ^xl
thousand, it should not consent to becomeaS&''.
Can it be doubted whether Congress will b?.
power, notwithstanding, to admit them?
But the ordinance says : '* CoDg:ress shall kv
power to admit them before their numbers amm
to sixty thousand." Before the existence of i ;<r-
tain population, there can be no territorial Ltf^
lature. But, suppose Congress thoag[hT fit IrM
those numbers were attained, to admit thfis.:^
having by the compact the undisputed righiio^
so ? Thus it appears they could admit tfaemik
there was no Legislature in the Territory. t:?iR
its assent, which demonstrates that the isci d
the Legislature is not necessary.
We are not, however, for doing anythief^s-
f)ulsory. We only propose doing thatViiis-
ess confirmed by the people of the TerriitTT ••i
amount to nothmg. Congress can only \^^
terras by which itself will be govenftd;Daio:!
see that the privilege of admission into the lis
can infringe in the least the rights of iheTflri^-
ry. 1 am in favor of admitting the Terriwryc
tne Union for the reasons detailed in tberepcr.
and particularly from the general dissaiisu:'i£
which prevails under their present form of &'
ernment. We all know the ^reat dissati>fa:s^-
that has existed in all the territorial goTeromrJ
and I believe that a very great dissatisfactkiti
ists in this Territory.
Mr. GRiswoLn. — This is not the first prc;^
started this session that goes to a consoliu:'^
and destruction of all the Slates. Thatibi:'-
be the effect of the present measure caar^
think, be denied. What is the condition «j
people of the Territory ? They are ooiitii^-
as to every purpose or government a Siai?. ^'
they have a complete Legislature, as fully c-a"-
tent to leffislate as the Legislature of Mwy^^
or any other Legislature in the Union. Tbr***
fully competent to the making of all laws u>^
ulate the internal concerns of the govemer*.
Now these resolutions go to interfere with'-'*
internal concerns, and to regulate them by »*
tional law. When the gentleman from Kent- -^
(Mr. Davis) undertakes to decide the lem^ ^
which the members of the Convention ^^'^
chosen, I ask him where is the power? Ajf-
the powers of the Territorial Legislature as l-tf
those of the Legislature of Maryland; and^ '
not we as good a right to interfere withibt'^^
concerns of Maryland as to interfere wi^^
concerns of the Territory 7 I call, th^j: ^';
gentlemen to say, whether they are wiwtt^ ■
sanction a principle that goes to the W-^
consolidation of these States ? We hare ti? -
1105
HISTORY OF CONGRESS.
1106
March, 1802.
Northwestern Territory,
H. opR.
termination of the territorial Legislature that it is
DOt desirous of fbrming a Constitution at this
time. If, then, we go abreast of the determina-
tion of one Legislature, why not of another ? If
we go abreast of that of the Northwestern Terri-
tory, why not go abreast of that of Maryland ?
If, too. you may legislate for these people before
they are admitted into the Union, you may
also legislate for them afterwards ; and if you do
not like the constitution they now forn^ y^^ ^^V
pass a law for another Convention. By a parity
of reasoning you may force down a constitution
CD Connecticut, and say that as that State has no
written constitution, you will give her one. Act-
ing under such a principle, there can be no stop-
pioff, you may go any length. If you interfere
witli the authority vested in others, you may pro-
ceed any length, and that consolidation of the
States, which some gentlemen wish to see effect-
ed, will be accomplished. I am, therefore, on
Constitutional ground, opposed to these resolu-
tions. I do not inquire into the expediency of the
measure. Let the people judge oi this. If they
wish a constitution, I have no objection ; but I
Tvould not impose upon them what the compact
does not warrant, nor would I impose arbitrary
power any more upon them than upon any of the
States.
The report says :
" Resolved, That provision ought to be made by law
for calling a Convention within the Eastern division of
the Territory, to be composed of members to be appor-
tioned among the several counties therein, in a ratio of
one Representative for every inhabitants of the
said counties, according to the last enumeration of in-
hibitantfi thereof^'' &,c
I understand the project is to portion out the
people into districts to choose members of Con-
vention ; and I say, as you have not the power, it
is arbitrary and unjust. '
Mr. Nicholson. — I am surprised at the ground
taken by the gentleman from Connecticut. I
never doubted the authority of Congress to admit
new States into the Union, as the Constitution
expressly declares that new States may be ad-
mitted. That gentleman says, this measure tends
to a consolidation of the State governments. I do
not know what idea he entertains of consolidation,
nor do I know to whom he alludes, when he says
a consolidation of the States is the wish of certain
members of this House. I can only say, that I
have heard gentlemen on this floor express their
universal abnorrence of this event, because they
knew that, if the States are destroyed, we shall
have a consolidated instead of a confederated
Government.
The gentleman says that, if we pass these reso-
lutions and authorize the people of the Territory
to form a ^[overnment for themselves and come
into the Union, we mTght as well say the same
thing to the people of Maryland. Was there ever
a more absurd doctrine that States, acknowledged
to be sovereign and independent, should be com-
pared to a Territory dependant upon the General
Government? I ask if Maryland can be com-
pared to the Territory ? Have both similar pow-
ers? What power has Maryland? The power
of altering her form of government whenever she
sees fit, so that she does not change it for an anti-
republican form of government. Have the people
of the Territory the same right ? No ; because
the Governor and Legislative Council are ap-
pointed by the President, and have the power of
preventing the passage of all laws. Hence the
powers kre different, and essentially dissimilar.
Congress have passed an ordinance, which is in
some measure the constitution of the Territory,
and from which they cannot deviate.
The gentleman from Connecticut calls these
resolutions an interference with the Legislative
rights of the Territory, and asks, if the Territory
has not as complete Legislative rights as any
of the other States? I answer that, in some
respects they have, and in other respects they
have not. They have not the right of saying
how their Governor shall be elected, or their
judges appointed^ as in Maryland ; the Governor
and judges are, m fact^ prescribed them by the
United States.
If these resolutions are passed, they do not in-
terfere with the rights of the citizens of the Ter-
ritory; they do not say they shall come into the
Union, or that they shall form a constitution;
they only lead to the passage of a law enabling
them to do that which, it is allowed on all hands,
they have themselves a right at present to do.
The gentleman says, we ought to wait for the
approbation of the Legislature. But if the gov*
ernment of the Territory were to remain organ-
ized as at this time, I believe we might wait till
doomsday, before we obtained their approbation.
Have we not seen a law passed by that Legislature,
not for bettering the condition of the people, but
for dividing them in such a manner as to protract
their admission into the Union, and thus enablin|;
the present Governor and judges to hold their offi-
ces after the Territory, from its population, ought
to become a State ? I ask ifl under these circum-
stances, it is to be expected tnat the Governor and
Legislative Council would consent to the applica-
tion of the petitioners? The thing is impossible.
And it will appear that they have taken every
step in their power to prevent the people from
enjoying the rights of citizens as attached to a
State. By subdividing the Territory, they have
reduced their numbers so low that there is not a
probability that they would come into the Unioa
for ten years to come. And yet we are told the
people ought to wait until the government of the
Territory applies for admission into the Union.
The Governor and Legislative Council are not
chosen by the people, who may therefore earnest-
ly desire an admission, as long as they please,
without the power to obtain it. This scheme, in
fact, puts everything in the power of the President
of the United States.
The people, to the number of several thousands,
have expressed a wish to be admitted into the
Union. Who makes objection? It is merely
made by the Delegate from the Territory, who
tells you he has no instructions, and yet he is the
only man in the whole Territory that opposes the
1107
HISTORY OF CONGRESS.
m
H. OP R.
Northwestern Territory.
UkKR.\yl
wishes of the whole people of the Territory.
If we-are not to attend to the voice of the peo-
ple, and are to wait for Legislative interposition,
we may wait until the present Governor's time
expires, and, until the President shall choose a
hetter man ; hy better man, I mean no other allu-
sion than to the fact that the present Governor has
declared that it is not his wish that the Territory
should be admitted into the Union. Thus you
would put it in the power of the President to keep
this district under a Territorial government as
long as he pleases. We ought not, then, to run
the chance of the President's appointing a partic-
ular man to the office of Grovernor ; but at once
to regard and conform to the reasonable wishes of
the people of the Territory.
I repeat it, that, in these resolutions, there is
nothing compulsory. If the people of the Terri-
tory do not think proper to form a State govern-
ment there is no compulsion to do it.
Mr. R. Williams said, he had hoped the gen-
tleman from the Territory, when he was up.
would have given some iniormation to the Com-
mittee, in answer to the inquiry made by the
member from Pennsylvania (Mr. Greog) as to
the petitions on this subject. JBut he had thought
proper to avoid it, for what purpose he knew not,
unless from a conviction tnat their objects and
numbers would militate against his wishes; this,
he presumed, was the true reason, which forbid a
compliance. He said he had, in naste, attempted
a selection of those petitions, but really found
them so numerous as to render it perhaps impro-
per to attempt to detail them to the Committee at
this time. He would only state that, since Con-
g:ress had rejected the law passed by the territo-
rial Legislature for dividing it, more than twenty
petitions had come on, signed by thousands of the
inhabitants, and many by select men chosen for
the express purpose by the people, and the^, too,
from almost every county m tne Territory, pray-
ing for a State government^ and stating their griev-
ances in the most respectful terms. He said there
were als9 a much greater number against the law
which he had just mentioned, which also had the
same object in view, that of a State government;
as it was known the effects of this law and its ob-
jects were to prevent a State government, by cut-
ting them into small sections and dividing the
population, so that their numbers in no part should
De sufficient to entitle them to a State government.
Mr. W. said, from every information he could
obtain, he had no doubt but that nine-tenths of
those people were in favor and wished a State
government. Nay, there was not a solitary peti-
tioner to the contrary, except the member from
the Territory, notwithstanding his ^reat desire to
defeat this measure, by opposing the will of the
people whom he ought to represent on this floor.
The gentleman from Connecticut (Mr. Griswold)
has started a Constitutional objection to this res-
olution, to enforce which he had supposed it to be
intended for one of the Slates now .in the Union,
and asking, whether Congress have the right to
direct the State of Maryland to call a Convention,
&^. 1 No. Mr. W. said, he could see no analo-
gy between the case put by him, aod the pm>.:i
one before the Committee. The State o: M;v
land was an independent State, and was sc^^
the formation of the Federal GoTemmeEi j.
had her constitution independentlr of the &>
ral Government, which sheas well as er(rr):::-
State, has a right to alter at discretioD,aDdciU;
of which have done so, since the present G-?;*::-
ment. But what is the situation oi this TemiiTT*
Here is a tract of country belonging to the U:^'*:
States, which they wish to settle*, they fon::'
the people who shall go there, a temponry r
ernment, and at the same time, agree that, t:^
ever this tract of country shall hare a fstriL
number of inhabitants, to wit: sixtphoiaiil.
shall be admitted into the Union ; and^ifcuns^
ent with the general interest, such admissios^
be sooner, and when there may be a less noi/:
of inhabitants than sixty thousand.
It is to be observed that the term of adui' :
is two-fold ; first, when they hare the ncisr
sixtv thousand, the ri^ht ofaamissiooisaiB^/
in the second, when they have notthennmfer-
is discretionary with Congress; but thba?'-
tion, henresumed, ought to depend on ibteif^:
ency and policy of the measure; but. sarf^ p.>
tlemen will not contend there is any C.::>
tional impediment in the wayjifgeoikyt''-
attend to the ordinance, and the ConstitaJ.::>'
ing the right to Congress to form aDdlafci^':-^
States.
The same gentleman (Mr. G.) has suiri ^'-
further objection, that this applicatioDfori--'
sion into the Union, does not come three *
proner channel, by which we are to \i.^'^ -
public will, and says it ought to harec.'
through the Legislature of the Territory; lisi^ -
is the source from which we arc to look for i:fl
pression of the public will ; and again ref^?^ '
what ought to be an application from any i^-
States.
Mr. W. said, although he admitted it wt ^
common for that gentleman and himself loi.*^
as to what ought to be an expressioD of the F*^
will, yet, on the present occasion, for ar^uc-
sake, he would agree to the case stated, w' ^
should regard the act of the Legislainre c. c
of the States as expressive of the will c: •
people in such State, and still it does do::'
on the present case. In all the States, a-'
the peoj^e have a government of the.r :""•
choice, which themselves have formed:
are represented by those of their own i\}\^
ment, and who are responsible to the ^V^
short and stated periods by elections; b«*';
may infer that, in their public acts, the «'"
as well as opinions of the people arc con-
But, how is it as to this Territory? Ha^-J;
people a government of their own choice- '^^
not two branches of the I^egislature, the U
nor and Council, appointed by the PresJiia
the United States, independent of thepeo?*^-
under no kind ofresponsibilitytoihem? E^^^'
salary which the Governor receives iipanj'J -
United States. The Representatives are c-;
by the people, but by a very limited suffiiT-
1109
HISTORY OF CONGRESS.
1110
March, 1802.
Northwestern Territory,
H. opR.
deed ; and the Gorernor, it is to be observed; has
an unqualified negative on all the acts of the Le-
gislature, with a power to dissolve, and prorogue
them. &c.
Mr. W. said, this being the situation of those
people as to a government, he would venture to
say that, if Congress disregarded the direct appli-
cation of the people for a State government).a^d
wait for a Legislative application, that it never
would be made ; for it is not to be supposed that
those men who have the power to nullify every
act of the people, through their Legislature, will
ever sanction pne which is calculated to put an
end to their political existence. Nay, said Mr. W.,
have we not had, before the present session, a me-
morial, for example, which proves what those men
would do had they the power? Did they not pass
a law, which this Congress almost unanimously
rejected, in palpable violation of their constitu-
tion (the ordinance) and which was intended
solely to prevent the people from obtaining a State
government, by dividing the population in such
manner AS that their numbers would not entitle
them to a. government? When, said he. men will
so far disregard their oaths and the interest of the
people, as to do acts of this kind, what may we
not expect them to do, in order to promote their
own private views? Thus, he said, we might
fairly conclude, that neither from the nature nor
practice of this Government, was an expression
of the public will to be expected through its
Legislature, but the reverse. But, it is asked, why
force these people into a State government? This
is not a fact, as relates to the petitioning of the
people, or the report of the Committee ; if gentle-
men will attend to the report, they will find it is
left optional with those people, when in Conven-
tion, to say whether they will go into a State Con-
vention, or not. Where is the impropriety ? It
only gives them a fair opportunity of exercising
those rights, which belong to every people, and
which it seems strange any should be disposed to
deny them. It also will afford a fair opportunity
of trying the validity of the assertion, made on
this floor, that these people do not wish. a State
government ; should that be the case, no doubt
they will act accordingly, and all parties be satis-
fied in the will of the majority.
Mr. W, said, these territorial governments,
which the United States have been obliged to re-
sort to, were arbitrary at best, and ought not to
exist lousier than they could with propriety be
dispensed with. They were, he said, opposed to
the genius of the people of this country, and in
direct hostility with their notions of government;
of course we were not to suppose they would be
satisfied under them any longer than they may be
incapable of self-government. He said he did
not wish to take up the time of the Committee
in detailing the powers of this Government, and
the abuse of them by the government of the Ter-
ritory, to prove what he had just stated, because
he believed they were well known to every mem-
ber of the Committee, which was quite sufiicient
for the present purpose.
Mr. W. said, he believed i; to be a degree of
justice due to those people, as well as sound poli-
cy in the General Government, to admit them
into the Union at this time. The people resident
in the Territory had emigrated from the different
States in the Union, where they had been in the
habit of enjoying the benefits of a free form of
government; they no doubt looked forward to a
very short period, at which they might again en-
joy the same as pointed out by the ordinance, to
effect which, it was natural to suppose they had
invited a migration to their country ; but if the
doctrine now contended for in oppo.sition, shall
prevail in this House, all their hopes are blasted.
Ought we not, said he, to have a fellow-feeling
for those people ? Let aov gentleman make their
situation nis own, and will he longer hesitate aa
to the propriety and justice of the measure ? It
cannot be doubted but that these people are ripe
for self-government; they now have, or will by
the time proposed for their admission, the number
required by the ordinance, viz : sixty thousand.
By a recurrence to the census taken more than a
year past, it will be found their numbers were
forty-five thousand; since which we are to sup-
pose a ^reat increase of population, for we find
that the United Slates since then have sold more
than a half million acres of land within this Ter-
ritory, for a sum amounting to more than a mil-
lion of dollars. It is also to be observed that
agreeable to 'the census taken in that country in
the year 1794, the number of its inhabitants did
not exceed six thousand; thus in about seven
years we find an increase in this country of about
forty thousand people. They now pay an expense
nearly equal to some of the States, to support their
government. From this statement of^iacts, Mr.
W. said, by the time proposed for their admission
by the report of the Committee there could be no
doubt of their absolute admission into the Union
under the ordinance.
Mr. W. said he had stated that it would be the
policy as well as the interest of the Federal Gov-
ernment to admit this State into the Union ;
he believed there were many considerations to
warrant this opinion. The General Government
owned much valuable land in this country which
it wished to sell ; that it was a source from which
much of our revenue is calculated to be drawn.
Certainly then to form this country into a State,
and the people to have a free government of their
own choice, and enjoy their natural and political
rights, will contribute more to the settlement and
increase of its population, than under the present
form of government. The natural consequence
will be a demand for our* land as well as an in-
crease in its value; but let Congress once show a
disposition not to admit them to those rights, or
delay them, and th.e reverse will certainly be the
fact ; for it is not to be supposed that the people
of America will be disposed to ^o from a free, in-
to an almost arbitrary form of government, or
to, remain there. Again, the United States pay
towards the support of this Territorial govern-
ment, between tour and five thousand dollars an-
nually, which they will be freed from by adopting
the proposed measure. Mr. W. said there was
nil
HISTORY OF CONGRESS.
UL
H. OP R.
Northwestern Territory.
Mabcb.!!*
one further consideration, which he thought ought
to have weight on the present occasion ; he confes-
sed it had much weight with him ; which was^ that
the people in this country were extremely dissat
isfied with their present government, and particu-
larly its administration ; and this dissatisfaction
would increase in proportion to their sense of be-
ing entitled to, and ripe for a better. He conceived
it to be the duty of all Government to make its
people as quiet and happy as possible, consistent
with the general good, and to effect which it is of
primary importance to grant their reasonable re-
quests. In the present case, he could see no way
so well calculated effectually to remove this dis-
satisfaction, as to give them the liberty of forming
for themselves .a government. That there would
be some still dissatisfied, he had no doubt, but who
would they be^ He supposed those now in power,
and their adherents, who hold offices and appoint-
ments not derived from the people, but independent
of them ; this was a natural consequence. It was
not to be expected they would ever agree to a
change likely to prove unfavorable to their pres-
ent situation.
Mr. W. said he would further remark, that, in
admitting the Territory to become a State at this
time, certain articles of compact were proposed to
the convention to be called for forming a govern-
ment, which, if agreed to, he thought, must prove
highly beneficial to the United States as well as
that State; among which was, that the lands of
the United Slates to be sold, should be exempted
from taxation by that State for a term of years ;
those articles, to be sure, they were free to reject ;
yet, he believed, they would be agreed to, as there
was an equivalent tendered on the part of the
United States, which would induce acceptance.
But, in case Congress disregard the wishes of
these people at present and keep them out of the
Union, until they shall be admitted under abso-
lute right, we are nut to expect any favor but in
the' same wav.
Mr. W. said that, in every point of view in which
he had been able to consider this subject, its propri-
ety presented itself to his mind so forcibly, tliat he
could not but be surprised at the opposition of
some gentlemen. The people settled a country
under an express agreement with the United
States, that at a certam period they should be ad-
mitted to the rights of a free Government, and
form a member of the Union. They now come
forward, ask it, and show themselves entitled;
and that the present Government you have given
them has become oppressive, and incompetent to
promote their happme^; yet are'they to be told,
remain as you are, because a few interested char-
acters among you are not agreed that you shall
be free. He concluded by saying, however some
members of the Committee might be opposed to
the measure, he hoped that there would be found
a large majority in favor of it.
Mr. Bacon. — These resolutions involve two
questions. The first of which respects their con-
stitutionality ; and the second, their expediency.
With respect to the first question, there appears
to me to be no reasonable doubt. By the Consti-
tution, the power of admitting iftw Statebt:
Union is vested in Congress. Theihinl^?:
of the fourth article says: "New State? nu:^
admitted by the Congress into the Uoioii' Ti
mode of admission is left discretioDary. Tr
power, then, being vested in Congress, itj i
mode in which this power may be exercwj *
ing determined in that other part oftheCor^:
tion, which says. Congress shall hare power ■
'make all laws which shall be Decesarfi:
' proper for carrying into execution theforrrjf
* powers, and all other powers vested by ilii«i>
* stitution in the Govern ment of tbeAJnitedSiv
* or in any department or officer thereof^ ifi
resolution be necessary to carry the rested i^t?
into effect, every objection against the coto
tionality of the measure mast vaoisb. Xchu
the power of admission, but also the pew:
passing the law% necessary for admission e^;^
granted.
As to the expediency of the measure, ve sr
not be so competent to judge; but bytbfff?
nance we find that^ when the Territory ski:-
tain a population of sixty thousand, it shiit^^
mitted as a State into the Union; aiHtpsiv
far as it may be consistent with the gemi :*?•
ests of the Confederation, it shall beiiii--'^
earlier. If, then, the admission be coiimsriit-
the general interests. Congress having thev-t"
to admit, ought to exercise it. Forwetli^t'
that the possession of liberty is a reryie^^"*
thing, and ought to be extended liberaih'.fcp^ '
where no injury can arise from it. '
Mr. Ghibwold. — I have long been pefJ»-^^
that when gentlemen are determined npo] a*
particular measure, they can readily find F''^
for it. The Constitution is brought in !i' -
aid. thoufifh the fact is, that TerrilorreiisiK'^
fore the Constitution was formed. Thep«"||
the Territory never consented to it; Dorn-*
bound by any part of it which giresmoreK''
to the Federal Legislature than it giresb'^
compact. Their rights, under thecompaf'/
not be taken away by any provisions oftlsf^^
stitution, to which they were not a party- ^'^
therefore, lay the Constitution totellyoatofi'
question.
The gentleman from Maryland (Mr. ^-y*'
son) and myself, agree in one or two point '
agree that it is competent to Congress lot:^
the Territory into the Union before it has a:^:'
a population of sixty thousand. If this ww:*
sole object of the resolutions, I would >r'
them. We agree in another point ; thatC.JT'
has not the right to impose a conTenriiJcc
these people without their consent. Tbequj^' -
then, IS, whether it is, or is not, the object o.^
resolutions to impose a convention. LetP-
to the thil"d resolution, which iscalculaiei^^''
press words, for calling a convention by* •'
the United Slates, and by taking the popi*
of the last census as the basis of ^^P^^^'j
If the principle be a sound one, that we k^
right to impose a convention upon the pe^^'
Ihe Territory, without their consent, hoir a."-
opinions of tne people on the calling a codts--
1113
HISTORY OF CONGRESS.
1114
March/ 1802.
Northwestern Territory.
H. o'p R.
to be obtained ? How is their consent to elect
Delegates to be obtained 7 The consent expressed
on the face of the petitions before you cannot be
said to be a legal consent. How else, then, can
such consent be obtained ? In no other way, than
> by an act of the Territorial Legislature, or by
going round to every man in the Territory, and
obtaining his opinion. If this be left undone un-
til the election for members of the convention, the
result will be a partial expression of the public
mind. For one man may vote, and another refuse
to vote. Thus you may get a partial convention,
composed of a. few demagogues. I say, therefore,
that, however defective the provisions of the com-
pact, you must obtain the consent of the Territo-
rial Legislature, before you take the step of call-
ing a convention.
Believing the inevitable efifect of these resolu-
tions will be to impose a convention on the Ter-
ritory,- I am justified in saying they involve a
usurpation of power by the United States, of pow-
er not belonging to them. If the resolutions
amount to anythmg, they amount to this ; if gen-
tlemen will first obtain the consent of the Terri-
tory, in a proper mode, though their population
does not amount to sixty thousand, I will consent
to their admission into the Union. I am disposed
to let them act for themselves, to let them divide,
or not divide, the Territory into States, as they
please ; but I am against imposing anything upon
them contrary to their will. They are more deep-
ly interested than we are in the establishment of
a proper form of government. They, and not we,
are to be bound by it. They, then ought, in its
establishment, to act for themselves, and not wq
for them. I contend that such a measure is ex-
traordinary in this country. I know that it has
been practised in other countries. I know that,
io Switzerland and in Holland, the people were
told by the Republic of France, they had bad con-
stitutions that required alteration, and that the
Republic, with sisterly kindness, without asking
their consent, imposed conventions upon them,
which formed for them entirely new systems of
government. But I trust the same thing will not
be done here.
I do not think it necessary to inquire into the
expediency of this measure, as I have no objec-
tion to giving my consent to the admission of the
Territor^r into the Union, even without a popula-
tion of sixty thousand, if wished for by the peo-
ple ; though I have no idea that the people will
be beifefited by it, as they will then nave taxes
to pay, from which they are now exempt. But
I do not consider this as a proper objection for us
to make, as it ought to rest with tne people to
say, whether they are willing to pay those taxes.
I say again, we have no right to impose a con-
vention. I believe that the "principle on which
we take this step goes the full length I have stated,
and may, if adopted in relation to the Territory,
be applied to all the States. The powers of the
Territory, on this head, are as complete as those
of the States; and if we interfere with the first,
we may interfere with the last. I know that, in
Connecticut, the Legislature may regulate the
choice of Governor, and that the Legislature of
Maryland chooses the Governor ; but these pro-
visions do not give a right to th^^ational Govern-
ment to interfere in the regulations of the one or
the election of the other. So^ if the Legislative
powers of the Territory are limited^ no power is
thereby given to the National Legislature over
those powers which exclusively belong to the
Territory.
Gentlemen may say what they will, but there
is nothing under the ordinance to prevent an ex-
pression of the public voice of the Territory. Jt
is true that one branch of the Territorial Legisla-
ture is chosen by the President, but the other
branch is chosen directly by the people. It is,
therefore, perfectly safe to trust to the expression
of the public will through a Legislature, which
is chosen every two years. If gentlemen will
confine themselves to giving the assent of the (Gov-
ernment to the calling a convention, I will agree
to it ; I cannot agree to impose one.
Mr. Nicholson. — I will not undertake to say,
with the gentleman from Connecticut, (Mr. Gris-
woLD,) that the people of the Northwestern Ter-
ritory are not bouna by the Constitution, as that
doctrine might carry us farther than we mean to
go; but I Will say, there is nothing in these reso-
lutions that abridge the rights of the people. They,
in fact, extend them; and though, in the opinion
of the gentleman, the people may not be oound
by the Constitution, they may not be unwil-
ling to accept the privileges we now offer them.
We are about to bestow upon these people, what
man has ever considered as his greatest blessing,
the right of self-government; to offer them a full
participation in all our rights. They have a right,
if they please, to accept these high privileges,
which we have a Constitutional right, if we please,
to bestow. I do not know that 1 said, what the
gentleman from Connecticut ascribes to me, that
Congress has no right to impose upon these peo-
ple the calling a convention. I did say that Con-
gress had no right to give them a constitution,
without their consent. But take gentlemen on
their own ground ; grant, for argument sake, that
we have no right to impose upon them a conven-
tion. Is there anything like this contained in the
resolution ? We only enable them, by the first
resolution, to come into the Union under princi-
ples not repugnant to the Constitution, or to the
ordinance of 1787.
The gentleman from Connecticut says, we are
not to collect from the petitions on our table, that
every man in the Territory should be admitted
into the Union. True, we see that this is not the
case. We have evidence here, from the language
of the Delegate of the Territory, that there is one
man<, at least, against it. But, from the complec-
tion of these petitions, and from the great number
of signatures, we have reason to believe that a
large majority of the citizens are for the admis-
sion, particularly as we have received no opposing
petitions. We nave reason to believe that a por-
tion of the people are opposed to the admission,
because those elected by the people have commu-
nicated to ns their indisposition to come into the
1115
HISTORY OP CONGRESS.
HI
H. OP R.
Northwestern Territory.
MlRCB-lifl
Union ; also, the Governor, and the member on
this floor, are of the same opinion ; but when the
small number of €his description of citizens is
contrasted with the several thousand petitioners,
who pray for admission, the fair inference is, that
a large majority wish to be admitted.
The gentleman from Connecticut says, there is
no way of getting the consent of the Territory,
but through their usual Legislative organs, or by
going throughout the Territory and collecting the
opinion of every citizen. But I will ask him
how the assent of the people of the United States
was obtained to the Constitution, under which
we now live ? Was it obtained by the assent of
all the Legislatures, or by that of every man in
the country? No; the same mode was then
adopted that we are now pursuing. Conventions
were assembled, which ratified the Constitution
for their respective States, which was not binding
upon t|iose States that ratified it, until adopted by
nine States; and then it was adopted as the su-
preme law of the land in those States. Now,
what do we wish ? Not to impose a convention
upon the people of the Territory, or to say, when
the convention shall be convened, they shall adopt
a constitution. We take, on the contrary, the
same mode pursued by the grand Convention,
which did not say that every State should elect
conventions, but that, when the conventions' of
nine States should adopt the Constitution it should
be in those States the supreme law of the land.
So we say. that, when the people of the Territory
shall have elected a convention, and adopted a
constitution, it shall be valid. Here is no com-
pulsion ; we only take the best measures we can
devise for obtaining the sense of the people. This,
while it is the only, is also the fairest opportunity
they can have of freely and fully expressing their
sentiments, because, by voting for a man who
shall declare himself an advocate of, or an oppo-
nent of the measure, the sense of the public will
be' obtained. This will be accomplished more
completely and distinctly, by voting for a man,
whose duties will be confined to this single object,
than by electing to a Legislature men whose du-
ties are various and multiform.
I must sa^ that I do believe that the wishes of
the people will be better expressed by a convention
appointed by the people themselves, than by a
L^islature, two branches of which are appointed
by the President of the United States.
As to pecuniary considerations, I am at a loss
to understand the gentleman from Connecticut,
who seems to think that the Territory, when
formed into a State, actuated by the inordinate
possession of power, will be likely to grasp at our
lands. But there will be this difference between
his plan and ours. If we admit them now into
the Union, we may make very important terms,
which they will observe inviolate, if not lost to
every principle of good faith; whereas, if we wait
until thev shall have acquired the right of admis-
sion, without our consent, we can make no terms
with them whatever.
Mr. GoDDARD. — The present question arises out
of a question decided before. A proposition was
made by the Legislature of the Territory ic::.
it; an application to this effect was made id <:
ofress, who refused their assent to it. Tbe i*e^
m consequence of that refusal, now come hrr/j
and ask to be adopted as a State ioto ibeU* ^
and we are now called upon to make them i Si:-
If the object of these resolutions were birriy^
say, they might be a State, I should barei^::^
jection ; but we are about exercising a potei.i
that Territory, that belongs to the Legislaturr I
the Territory. Does not that Legisiatorepfesa
every power that we are called opontoeierc.'!
Suppose Congress were to decide tbatthepi.J
be admitted; would not the Legislature cf:i
Territory have the power of decidio? w!!!::^
and how, a convention should be called) Tibi^
case of Maine. Suppose that we not oalnitl
Maine into the Union, but say that a coomu
shall be called. ' Would we not, in ihatn? j
terfere with the powers of Massachusetts ? il
do we not, in these resolutions, violate tie >?«
of the Territorial Legislature in the acieii^l
[Here Mr. G. read the third article, wits r-
spects the calling a convention.]
The adoption of the first resolaiioa Itxr-
fectly useless without the adoption of at-',
resolution, we are to infer that, if ODes!:i'.55
adopted, tne other will also be adopieil. F"
this should be the case, we must waiifot-^^'^
pression of the Legislative will of the tfrrt-rr,
which we may as well wait for before we ji'
the first resolution. It is to be remembered L'
that under these resolutions Congress are lopit'-^
expenses of the convention, and that i^tr.J
business is indeed under the direction of Cw^psj
Why precipitate this measure, when ioall^^
bility, before these details can be raadctbtld
tory will have obtained the number of sixtr::?
sand, and be entitled of right to admissioii :|
the Union 1 For these reasons, I am of opia:^
that it will be best to leave the business wbctci
Mr. Macon said the House was broofi';
consideration of this subject by the petiUMjt
pie not only of this Territory but of all TeaX'-i
u<jii»iucf aiiuii ui huio ouujci^i «» tuv f^^..---
people of the Northwestern Territory, vb: '"^
dissatisfied with their present situation, i^h
government, will be dissatisfied, from A*^^^
tureof the government. We first Wyem^^^
of government, and then go into terriioria.;^
ernment and we don't find there the saw?^
ernment with the one under which we prfTi*^^
lived. Hence the invariable dissatisfaciion.
♦j
The only question now is, on agreeing - ,
first resolution, that is, to give oar coDseotq
Territory being admitted as a Suie into the IH
before thev have attained a populaiionw'J
thousand inhabitants. It seems to tne freo s
petitions before us that a decided majorijT*-
people are in favor of being admitted. Tbff*h
merous signatures could not be obtained in ^
ner, or without being known over the y^^^j}
ritory; and had sentiments prevailed in w^J
ri tory different from those expressed in ibepeQ-^-
we should have had before this time ov^^
covered with counter-petitions. . .
Mr. M. said he had never heard a Consm^.
1117
HISTORY OP CONGRESS.
1118
March, 1802.
Northwestern Territory,
H. ofR.
questioD started where there was so little ground
for it. He asked whether there was any^ yiolation
of the Constitution in admitting the Mississippi
Territory to the rights of a Legislature before their
numbers justified ihem in requiring it?
The gentleman from the Territory says they
may be admitted without a Constitution. But
does not the ordinance require that the govern-
ment shall be republican, and he would ask whe-
ther the present government is republican? He
believed not. So much did he dislike these Ter-
ritorial governments, that he wished all the Terri-
tories were formed into States, that they might
have a share in passing the laws by which they
are governed.
The gentleman from Connecticut says this mea-
sure will lead to a consolidation of the States. Its
effects will be directly the reverse, for the more
States there are in the Union, the farther removed
shall we be from a consolidation.
We are told that if this application were regu-
lar, the gentlemen would have no objection to it.
But can any act be more regular than that which
proceeds directly from the people ?
Mr. Fearing conceived nothing would be more
likely to promote disturbances in the Territory than
this law, as he conceived a large portion of citi-
zens would not consider themselves bound by it,
and of consequence not send delegates to the con-
vention. He conceived it unconstitutional, as
under it a convention might be called, a consti-
tution made, and yet that constitution be void.
For suppose that under the act proposed to be
passed a convention should be chosen accordin£[
to the present census, and a constitution formed
by them ; and suppose that another constitution
should be formed by a convention convened by
the Legislature of the Territory under a different
census ; which would be the real constitution of
the Territory ? Certainly the last, because formed
on a true apportionment of the population, and
under a law of the Legislature by which the Terri*
lory is governed.
The gentleman from Maryland says, that un-
less Congress interfere, the Territory can never
become a State ; and to prove this, he refers to
the law of the Territorial Legislature^ lately be-
fore us, expressive of their disapprobation of com-
ing into the Union. But this opinion is not cor-
rect; for many of the people of the Territory,
though better pleased with the division of the
Territory proposed in the law, would still wish a
State government, in the event of that division
being rejected ; and it appears on the journals of
the Legislature that some members voted for a
State government in that event. If the argu-
ments of gentlemen are sound, we might be kept
from obtaining a State government for one hun-
dred years, in case the rrcsident should appoint
or continue a Governor hostile to such a govern-
ment. But, Mr. F. said, he conceived the people
had a right, when their numbers amount to sixty
thousand, to be admitted, even if Congress shall
be against admitting them, or the Governor and
upper House in addition. He conceived that, un-
der the resolutions of the representatives propos-
ing a convention, if the people agreed to them,
a constitution might be formed that would be
fully obligatory.
Mr. F. said, when the gentleman from North
Carolina (Mr. Williams) spoke in relation to
the petitions on the table, he had presumed that
he was going to state the number of petitions in
each county. This, however, he haa not done.
As to himself he did not know from which coun-
ties the petitions came, but he presumed tbey
were principally from Ross and Adams.
The gentleman from North Carolina has said,
the present revenue^ of the Territory is sufficient
to support a State government, as appeared from
the contents of the petitions. The reverse, how-
ever,, of this is clear, by a document on the table,
which furnished information more worthy to be
relied on than that of the petitioners, who, them-
selves, he presumed, paid little, as the present rev-
enue was derived altogether from land.
If the Constitution is as binding as gentlemen
contend, Mr. F. conceived that the law of Con-
gress had vested a right in the Territory which
Congress cannot impair, viz : the right of the Le-
gislature to call a convention when the numbers
of the Territory shall reach sixty thousand.
As to the idea of gentlemen respecting a repub-
lican form of government, Mr. F. conceived Con-
necticut to be under a republican form of govern-
ment, which, however, consisted of nothing more
than fixed habits, which depended upon a law
which might at any time be repealed. There
was, in reality, no constitution, therefore, in Con-
necticut; so he conceived the Territory at liberty
to form, or not to form, a constitution. If not at
liberty, the terms of tne ordinance would have
been imperative.
Mr. GoDOARo moved to amend the first resolu-
tion, by insertingthe words "for giving the con-
sent oi^ Congress j" so as to read. " that provision
^ ought at this time to be made oy law for giving
' the consent of Congress to the inhabitants of the
' Eastern division of the Territory, to form for
' themselves a constitution and State govern-
* menl," &c. >
Mr. G. said, his only objection to the original
resolution was that, under it. Congress usurped
powers vested in other bodies. Should this amend-
ment prevail, there would be no occasion to in-
quire into ihe principles involved in the subsequent
resolutions.
The question was taken on this amendment,
and lost — yeas 13.
The question was then taken on the first reso-
lution, and carried — yeas 47.
Wednesoat, March 31.
Mr. Davis, from the committee to whom was
yesterday referred a motion respecting " members
of this House dying at the seat of Government du-
ring a session of Congress^*' made a report thereon;
which was read and considered : Whereupon,
Resohedy That the expenses accruing by order
of the House, in attending the funeral of Nars-
woRTHY Hunter, a member from the Mississippi
1119
HISTORY OF CONGRESS.
1120
H. OF R.
Norihwe9tem Territory,
MarcHj1802.
Territory, be paid out of the coiKiagent funds of
the House.
Resolved^ That the legal "representatives of a
member of this House, who shall die at the seat
of Government during the session, shall be enti-
tled to receive the same allowance for his itiner-
ant ezpeases, as the member would have been en-
titled to, had he returned to his place of abode.
A petition of David Austin, in behalf of himself
and others, inhabitants of the City of Washington,
ni the District of Columbia, was presented to the
House and read, praying that such a sum of money
as Congress, in their wisdom, may deem sufficient,
may be appropriated for the building of a house
for the exercise of public worship, on the Cauitol
Hill, for the accommodation and benefit ot the
inhabitants, and the improvement of the said city.
Ordered, That the said petition be referred to
a Committee of the whole House on Friday next.
A Message was received from the Pbesident
ofYhe United States, as follows:
Gentlemen of the House of RepresentaUvea .•
According to the desire expressed in your resolution
of the twenty-third instant, I now transmit a report of
the Secretary of State, with the letters it refers to, show-
ing the proceedings which have taken place under the
resolution of Congress, of the sixteenth of April, one
thousand eight hundred. The term prescribed for the
execution of the resolution having elapsed before the
person appointed had sat out or the service, I did not
deem it justifiable to commence a course of expenditure
after the • expiration of the resolution authorizing it.
The correspondence which has taken place, having
regard to dates, will place this subject properly under
the view of the House of Representatives. .
TH. JEFFERSON.
March 31 1802.
The said Message was read, and, together with
the papers referred to therein, ordered to lie on the
table.
Mr. SouTBARD.fromthecommittee to whom was
recommitted, on tne twenty-seventh instant, the bill
further to alter and establish certain post roads,
reported an amendatory bill, which was twice
read and committed to a Committee of the whole
House to-morrow.
On motion, it was
Resolvedf That a committee be appointed to
prepare and report a bill declaring the assent of
Congress to an act of the General Assembly ot
Virginia, entitled " An act to amend, and reduce
into one, the several acts of Assembly for improv-
ing the navigation of Appomattox river, from
Broadway to rocahuntas bridge."
Ordered, That Mr. Giles, Mr. Walker, and
Mr. Stanford, be appointed a committee pursuant
to the said resolution.
A message from the Senate informed the House
that the Senate have passed the bill, entitled "An
act to repeal the internal taxes," with several
amendments; to which they desire the concur-
rence of this House.
NORTHWESTERN TERRITORY.
The House went again into Committee of the
Whole on the report of a select committee respect-
ing the admission of the Northwestern Territory
as a Slate into the Union.
The second resolution being under consideration,
Mr. Fearing referred to the provisions of the
ordinance empowering Congre.<s to divide the Ter-
ritory, from which he inferred that Congress bad
not the right to divide the Territory so as to form
one part of it into a State, while the remaining
section was not made a State, without the con-
sent of the Territory ; he conceived that Congress
must, in such event, form this section also into a
State. He, therefore, was of opinion that Con-
gress must consult the people of the Territory
before they shall divide the Territory.
As to the expediency of the resolution, he
thought it very inexpedient to make the division
therein marked out. The efifect of it would be
that the whole of Lake Erie would be thrown
out of the State to be formed, and the inconveni-
ence to the section of the Territory not incorpo-
rated in the new State would be very great, if it
should be attached to the Indiana Territory, from
its great distance, which he understood was coo^
templated.
Mr. Giles said that the committee who report-
ed these resolutions, so far from entertaining a
disposition to change the ordinance, had strictly
observed the conditions therein prescribed. [Mr.
G. here quoted the ordinance.] It appeared there-
from that Congress was under an obligation, after
laying off one State, to form the remainder into
a State. But when 1 Hereafter, whenever they
shall think it expedient to do so.
Mr. Bayard agreed that there was no obliga-
tion imposed upon Congress to decide definitively
the boundary of a State. If the ultimate right
of Congress, after the formation of a new State,
to alter the boundary be doubted, they have a
right to remove all doubts by so declarinjg at this
time. It is certain that at present great inconve-
nience would arise from drawing the boandaxy as
fixed in the ressolution.
The population of the Territory does not
amount to that which is sufficient to give it ad-
mission into the Union. He had, however, no
disposition to oppose its admission, notwithstand-
ing this circumstance. The population in the
Eastern State does not exceed forty-five thousand.
We are now about to pare off five or six thou-
sand inhabitants, whicn will bring it down to
thirty-nine thousand. A population of forty-five
thousand is quite small enough for an independ-
ent State. It is a smaller population than exists
in any of the present States in the Union. From
this consideration, it might have been expected
that Congress would take no step wiiose effect
would be a diminution of that population.
The division, as made in the resolution, is man-
ifestly unjust, as far as it relates to the people
north of the dividing line. By it they are about
to be severed from their connexion with the other
portion of the Territory. Mr. B. wished to know-
to whom they are to be attached ? If attached
Ito the Indiana Territory, the inhabitants, to arrive
at the seat of Government, will be obliged to go
across the new State, a distance of two or three
1121
HISTORY OF CONGRESS.
1122
March, 1802.
Northwestern Territory,
H. OP R.
hundred miles. Besides, after haying advanced
them to the second grade of territorial vovern*
ment, you will consign them back again to the
first, and thereby give them a system of govern-
ment extremely odious, and which we ought to
eet rid of as soon as possible. Thus, after having
held out to them the flattering prospect of being
elevated to the high rank of a State, you degrade
them, contrary to their expectations, to the bum-
blest condition in the Union. « Mr. B., therefore,
thought it would be most just and politic to in-
clude this population of five or six thousand in
the bounds of the new State, subject to the re-
served right of Congress to alter the boundary
hereafter.
Mr. Giles said he was not tenacious of his
opinions; but it was necessary to justify the con-
teots of the report by stating^ some considerations
that might not be generally known to the mem-
bers of the House.
Mr. G. said he supposed the section of the Ter-
ritory, not embraced in the new State, would be
attached to the Indiana Territory; nor would any
great hardship result from this disposition; and
such as did result would arise from their local
situation, and not from any circumstances over
which the National Legislature had a controlling
power. He believed that people, to reach the seat
of Government, had as far to go now as they will
then have. His object was to reserve in future
to 'Congress the right of determining the bound-
ary of the States in the Territory. If this section
should once be admitted, he believed it would be
very difficult, however proper, to detach it from
the State to which it had become attached.
The report contemplates the forming a consti-
tution. Should the people on the northwardly
side of the line be admitted as a part of the State,
they will participate in the formation of the con-
stitution— a constitution which will not be ulti-
mately for themselves, but after a short time ex-
clusively for others. This participation would be
unjust. The question then is^ whether you will
suffer those to form a constitution who are not to
be permanently affected by it; and whether, if
you once constitute a State, you will be able here-
after to alter its boundaries ? For if this section
be now admitted, gentlemen, by looking at the
map, will see that the boundary now fixed cannot
be permanent.
As to the remarks made by the gentleman from
Delaware, Mr. G. said he was extremely ^lad that
gentleman was for giving to the Territory the
right of a State. If, however, he had attended
to the report, he would have found that his calcu-
lation 01 numbers was incorrect. The popula-
tion of five thousand had been deducted by the
Committee, and after that deduction forty-five
thousand remained*. Though the numbers m the
Territory proposed to be formed into a State
amounted, a year ago, to no more than forty
thousand, yet it mieht be stated upon strong
^ound, that, before the new government can get
into operation, there will be a sufficient popula-
tion to demand admission as a matter of right.
By attaching the inhabitants on the north of the
7th Cow.— 36
line to the Indiana Territory, they will remain in
the same grade of government they now are, and
not be degraded, as stated by the gentleman from
Delaware, to a lower state. This disposition ap-
peared* to Mr. G. the best that could be niade.
But if, when gentlemen came to the details of
the bill, it should be thought best to introduce in-
to the new State the population north of the line,
he said he might have no objection.
Mr. ^EABiNG stated the great inconveniences
that would be felt by the inhabitants north of the
line, if attached to the Indiana Territory. He
considered the remarks of the gentleman from
Virginia, (Mr. Giles,) respecting the participa-
tion of this description of citizens in forming a
constitution for others as entitled to little weight.
Such a measure was by no means uncommon. It
had been done in the case of Kentucky, and other
States.
Mr. F. conceived that the people of the Terri-
tory bad all equal rights under the ordinance ;
they had been virtually promised that they should
not be attached to any other Western Territory,
and Congress had only reserved to themselves the
right of admitting them into the Union as States.
More they could not do, without their consent.
Mr. Bayard moved to strike out of the resolu-
tion the words that fix the boundary, for the pur-
pose of introducing words that should prescribe
that th.e new State be circumscribed by the origi-
nal boundaries of the Eastern State, referring to
Congress the right of making one or more States
in said State at any future time.
Mr. Giles said that the State, as formed in the
report, was one of the most compact and conve-
nient in the Union. The amendment would ma-
terially change its character. Besides, it would
in fact impair the right of Congress to accommo-
date the boundaries to future circumstances. It
was well known, and sensibly felt, that there were
many inconvenient boundaries to several of the
States now in the Union ; yet so great was the
difficulty attending their alteration, that they
could not be changed.
Mr. Batard was not so sensible of the difficul-
ty of altering the boundaries as the gentleman
from Virginia, who had stated that Congress
would not have power to alter them w4ien once
fixed. This difficulty might exist as to the States
now in the Union, because Congress had not the
Constitutional power to alter them without the
consent of the adjacent States. But if this power
be referred to Congress, which will be a disinter-
ested tribunal, there will be no difficulty in vary-
ing the boundaries as circumstances shall dictate.
Mr. B. asked, if, while gentlemen are attending
to the interests and wishes of one part of the peo-
ple, \hey are disposed to disregard the interests
and wishes of another part ? If they were not,
they ought to admit the section, proposed by the
resolution to be cut off, to a participation in state
rights.
Mr. Bacon objected to the amendment. He
said that Congress were vested by the Constitu-
tion with certain powers which they cannot in-
crease, or diminish, or delegate. By the Consti-
1123
HISTORY OF CONGRESS.
mi
H opR.
Northwestern Territory,
March, \^k
tution, likewise, the several States are vested with
certain powers which they cannot increase, di-
minish, or divest themselves of. By the third sec-
lion of the fourth article of the Constitution,
" new Slates may be admitted by the Cdngress
into the Union." This act proposes to make this
Territory a State with State powers under the
Constitution. How, then, can these people, once
a State, divest themselves of these powers. This
is a question that does not interest simply the
State proposed to be formed, bat every State in
the Union. All are equally interested in preserv-
ing the powers vested in them by the Constitution.
Mr. GoDDARD said, that were he to vote for
making the Territory a State, he should^ be in
favor of extending State rights to all the inhabi-
tants of the Territory. He moved to strike out
the proviso to Mr. Bayard's motion, which
reserves to Congress the right cf altering the
boundary.
Mr. Fearing remarked that he was not a little
surprised to find gentlemen, who a few days since
voted that the Legislature of the Territory had
not a right to alter the boundaries without the
permission of Conofress, now contending that Con-
gress have that right exclusively.
Mr. Bayard said he did not see any occasion
for striking out the proviso. The gentleman from
Massachusetts, (Mr. Bacon,) goes on the princi-
ple that Congress has only a right to admit, with-
out any reservation. Mr. B. said he had always
believed the greater included the smaller. If you
are vested with the greater power of admitting,
you have certainly the minor powers included in
the greater power. ' From the nature of the ordi-
nance, it constitutes the fundamental principle on
which the States are admitted — they are not ad-
mitted under the Constitution. They are to be
admitted exclusively under the provision of the
ordinance. You may. therefore, say that you will
not now exercise the whole power committed to
you, but reserve the right of exercising it here-
after.
Mr. Smilie did not consider the principle laid
down by the gentleman from Delaware as Con-
stitutional. We must be governed by the Con-
stitution, If the Territory be admitted as a State
into the Union, when admitted it must be bound
down- by the Constitution, which says the bound
aries of States shall not be altered but with the
express permission of the State.
The question on striking out the proviso was
lost.without a division.
The question was then taken on Mr. Bayard's
amendment; which was lost — yeas 18, nays 38.
Mr. Fearing moved to strike out that part of
the resolution which reserves to Congress the
right of altering the bounda.y after the State is
admitted. Lost — yeas 20.
The question was then taken on the secnd
resolution, and carried in the affirmative — yeas 42.
The third resolution was then agreed to— yeas
42.
The fourth resolution was agreed to without a
division.
On motion of Mr. Fearing the right to two
salt springs, besides those at Scioto, was resteci
the new State.
Mr. Gribwold moved to strike out ibetk
article, which provides that one-tentli parted::
net proceeds ot the sales of Western iaod^sk ..
be applied to the making roads '^leading frosi;
navigable waters emptying into the Aibi-:
the Ohio, and continued afterwards throufiiii
State of
n
Mr. G. said he objected to this article, beaa
the proceeds of the Western lands bad \mvf
propriated to the payment of the public debu:.
to make roads for the States of VirgiDii '^
Pennsylvania would be the sole effect of ikt^^
tide. This, however disguised, would be tbce
feet. Mr. G. said he knew how large and p«f!^
ful were the delegations of Virginia and hvt
sylvania on that flo6r; yet he hoped, nuJO
standing their strength, so unjust a measorev.c!:
not be agreed to. He knew the propcKiiics eis
from a public officer, whose estate layinihttet
em parts of Pennsylvania, whose value Qii<y
appreciated by the roads contemplated Id t^{^
olution. He alluded to the Secretarj cf :ii*
Treasury, whom he was justified in cossfe^'
as the author of the plan from his lett^v.''^
panying the report.
Mr. Giles said he was sorry there wis qi^J'.
of the report that had a local aspect Beit-
was unavoidable. Local consideratioos vat a-s
necessarily blended with principles of r?^
utility. He recollected the passage cfsc'*^
bills for the erection of light-houses; ihoon'
did not recollect how manv of these werei*
at the public expense on the Connection ':=•-
Considering them as useful, though ibcy '^'*
local effect, he had always voted for ihea *
would also mention certain circuinstaDCcs issu-
ing the aiding of the fisheries to theeaM«i"|^
which certain benefits w^ere attached ihai^P
derived from the contributions of utber p^t-
the Union. Yet he had always voted fcrtfi
notwithstanding their local applicatiop. ^
So far as relates to Virginia, thesiiBpl*^*^
of this resolution will be to form a road s^f-
mountainous country. Mr. G.said heTO:-
self as little interested as the gentleman fri.a'>^
necticut. Yet, where measures were devisei^*
great object was the general benefit, iboD;*-^'
might be attended with local adrantagci^'^
no objection to them. He believed the S:^-
Maryland, the Federal City, AlexandriiJ^
more, and Philadelphia, would be mosibes^^
by facilitating an interchange of commoditi^
Mr. G. said he considered the circum^tts:^:
connecting th6 different parts of the Ic^s
every tie as well of liberal policy as of w-y
communication highly desirable. Hefof!^
lieved that the devoting one-te&th of thf F''^^'
of the lands to the laying out new roads';
be in fact no relinquishment on the ^^^}\
United States, as the lands thereby wca.. '
greatly enhanced in value. If, however, i'-
be thought that this sum will be better apF ; ■;
the opening roads in the interior of tbeSa^
should have no objection to that.
1125
HISTORY OP CONGRESS.
1126
April, 1802.
Northwestern Territory.
H. OF R.
The gentleman from Connecticut, (Mr. Gris-
woLD,) affects lately to have discovered a great
deal of disguise in the proceedings of this House.
What disguise? What were the committee to
do ? This country is placed in a certain peculiar
situation. We have waterct running to the East —
they to the West j and the committee thought it
was desirable to connect these by good roads.
With the committee, State principles orintertsts
had no iDfiuence— they were governed entirely by
general principles and the common interest.
The gentleman has also insinuated that the
Secretary of the Treasury holds lands that will
be benefited by these roads. It may be so. Mr.*
G. had not inquired ; but he supposed he did not
hold ail the lands.. Congress may lay out these
roads as they please. He could foresee how Con-
gress would lay them out, and it is a million to
one that they will not touch his lands.
The United States are about making a new
contract. These propositions are made as addi-
tional securities for the national property. The
Secretary of the Treasury having estimated the
annual product of these lands at four hundred
thousand dollars, Mr. G. said, as chairman of ihe
committee, he had applied to him'to know his
opinion of the manner in which this sum could
be best secured, and he gave his opinion that this
provision would be most likely to effect that ob-
ject. This is ail the mystery and disguise attend-
ing the resolution.
Mr. Smilib said when gentlemen charge par-
ticular States with injustice, they ought to be pre
pared to prove what they advance. If there had
been any co-operation between the delegations of
Virginia and Pennsylvania on this occasion, he had
never heard of it. The fact was, that no peculiar
good could result to Pennsylvania from this meas-
ure. The great object was to keep up that inter-
course which will attach the people of the Terri-
tory to you. When the Territory shall become a
State, she will have a risht to lax your lands.
This benefit, together with the salt-spring[s. as I
understand, is proposed as a substitution for the
r€linqiiishment of those rights.
Mr. Fearing said he considered a part of the
rights of the Territory given up by this resolu-
tion ; and though the Territory would be highly
benefited by the projected roads, and the cession
of the salt-springs, yet he conceived they would
be much more benefited by laying out the roads
'vrithin the Territory.
Mr. Griswold said he was glad the honorable
gentleman from Virginia had assured the House
there was no disguise in this business. If the ob-
ject be to make an advantageous contract with
the Territory to secure our Western lands, let us
offer them five per cent, of the proceeds of those
lands, to be paid into their treasury. If they shall
be disposed to make roads through Pennsylvania
and Virginia, he should have no objection.
He was as .sensible as the gentleman from Vir-
nnia, that whatever improves a pan of the Union
loiproves the whole; though this was undoubted-
ly the case, he was not or opinion that a sum of
money should be taken from the public treasury,
and specially applied to local purposes. Under
this resolution, according to the calculation of the
Secretary of the Treasury, forty thousand dollars
was the smallest sum that would be annually ap-
Elied to the laying out those roads. Mr. G. said
e thought the sum too large to be withdrawn
from the national treasury, and directed to local
objects.
The allusion of the gentlemen to light-houses
raised on the Connecticut shore does not apply.
There was but one light-house in Connecticut,
ordered to be built by this House, for which the
enormous sum of twenty-five hundred dollars had
been appropriated. Yet this solitary measure had
been rejected by the Senate. This is the great
boon given to Connecticut !
For these reasons Mr. G. hoped the article
would be stricken out, and that, if it was neces-
sary to make terms with the new State, they
might receive five per cent, on the receipts of the
land, to be paid into their own treasury, disposa-
ble by themselves as they saw fit.
Messrs. R. Williams, Jackson, and Holland,
said a few words in favor of retaining the article ;
when the question was taken on striking it out,
and lost — yeas 17.
Mr. Fearing, wishing that half the proceeds
of the Western lands should be laid out on roads
within the Territory, made a motion to that ef-
fect; lost — yeas 25.
The report of the select committee, without
further amendment, was then agreed to, and a bill
ordered in conformity thereto.
Thursday, April 1.
Mr. Dennis, from the Committee of Claims,
presented a bill for the relief of John Travers and
Charles A. Beatty ; which was read twice and
coibmitted to the Committee of the whole House.
The House proceeded to consider the amend-
ments proposed by the Senate to the bill, entitled
"An act to repeal the internal taxes ;" Whereupon,
the said bill, together with the amendments, was
committed to the Committee of Ways and Means.
On motion, it was
Resolved^ That the Secretary ol the Treasury
be directed to furnish this House with an estimate
of the expenses incurred by the United States in
the exercise of jurisdiction over the Territory ot
Columbia, since the assumption of jurisdiction by
Congress.
The House, resolved itself into a Committee of
the Whole on the bill sent from the Senate, enti-
tled "An act making appropriation for defraying
the expense of a negotiation with the British Gov-
ernment to ascertam the boundary line between
the United States and Upper Canada; and, after
some time spent therein, the Committee rose and
reported the bill without amendment.
The bill was then read the third lime and passed.
The House went into a Committee of the Whole
on the bill sent from the Senate, entitled ''An act
to empower John Jaaies Dufour and bis associates
to purchase certain lands. After rhaking some
progress therein the Committee rose and were re-
1127
HISTORY OF CONGRESS.
11:
H. OP R.
City of Washington.
hniLbi
fused leave to sit ag^in ; so the bill was recommit-
ted to Mr. Elmendorf, Mr. Davis, and Mr.
Cutler.
A message from the Senate informed the House
that the Senate have passed the bill, entitled "An
act for the relief of Isaac Zane," with an amend-
ment ; to which they desire the concurrence of
this House.
The House then resolved itself into a Commit-
tee of the Whole on the report of the Committee
of Commerce and Manufactures, of the thirtieth
ultimo, to whom were referred the amendments
proposed by the Senate to the bill, entitled **An
act for the rebuilding the light-house on Gurnet
Point, at the entrance of Plymouth harbor, for re-
building the light-house at the eastern end of
Newcastle Island ; for erecting a light-house on
Lynde's Point, and for other purposes ;" and, after
some time spent therein, the Committee rose and
reported their agreement to the same.
The House then proceeded to consider the said
report and amendments at the Clerk's table:
Whereupon,
Resolved, That this House doth agree to the
first, third, fifth, and sixth amendments.
Resolved, That this House doth also agree to
the second part of the second and fourth anpend-
ments, with amendments to the same, respectively.
Resolved^ That this House doth disagree to so
much of the second and fourth amendments of the
Senate, as proposes to strike out certain words in
the fourth and fifth sections of the original bill.
The House proceeded to consider the amend-
ment proposed oy the Senate to the bill, entitled
"An act for the relief of Isaac Zane :" Whereupon,
Resolved, That this House doth agree to the
said amendment.
CITY OF WASHINGTON.
The House went into Committee of the Whole
on a report respecting the City of Washington.
In lieu of the first resolution, one was substitu-
ted, on motion of Mr. Dennis, for abolishing the
present Board of Commissioners, and empowering
the President to appoint one or more agents to
manage the affairs of the city.
Mr. Griswold moved to amend the third reso-
lution by striking out that part which empowers
the President to advance moneys from the Treasu-
ry to pay the instalments of $200,000, and, in case
too great a sacrifice would be made by selling city
lots.
This motion was opposed by Mr. Nicholson.
and lost— yeas 20.
Mr. Gregg moved to strike out the proviso in
the fourth resolution, which saves from immedi-
ate sale a certain portion of city lots pledged to
the payment of $50,000 loaned ot Maryland.
This motion was supported by Messrs Gris-
wold, Edstis, Mitchill, Bacon, Randolph, and
Alston; and opposed by Messrs. Nicholson and
Holland; and carried — yeas 45, nays 20.
Mr. Nicholson moved to strike out the first
part of the fourth resolution, and insert in lieu
thereof a provision that in case the proceeds of
the lots do not prove adequate to repay the loan
of Maryland, the deficiency shall be paid /.
the Treasury.
This motion was supported by Messrs, Ni.-:
SON, Alston, T. Morris, and Dennis, ai:
posed by Mr. Gregg.
The Committee rose without coming ic i .r
cision, and asked leave to sit again.
Friday, April 2.
Mr. Bacon, from the committee appoiiitet :
the fourth of January last, to whom it tv >
ferred, on the twenty-fifth ultimo, -toe?: y
whether any, and if any, what, reduction oo;i::
be made from the pay of the Senators and R^
resentatives in Congress, as oowestabli^j:
law," made a report ; which was read, and ucs^*
to lie on the table.
Mr. Giles, from the committee immi :
the thirty-first ultimo, presented a bill deciit
the assent of Congress to an act of theGt:*:
Assembly of Virginia therein meotioned: Tt;:.
was read twice and ordered to be eogroscC di
read the third time to-morrow.
Mr. Giles, from the committee appciii^ z
the eighth of February last, presented zl-'.f-
peal so much of the acts, tne one enDiei'A:
act establishing a Mint, and regulating ^".'^
of the United States," the other, "An act ox
'An act supplementary to the act estatLi'^l
Mint, and regulating the coins of the Uniut!5x<:
as relate to the establishment of the Mint: f -
was read twice and committed to aComiarr
the whole House on Monday next
Mr. Randolph, from the Committee of ^r
and Means, who were instructed, on t&e tri:
sixth ultimo, "to inquire into lie expedte::<^
inexpediency of authorizin|r the Secretary i:^
Treasury to remit the duties, in all cases ^' •
have accrued, or may accrue, on spirits i-' -
and on stills, within the United States. upj3fl>
factory proof being made to the said S«:?^
that such stills, or distilling materials, hi" ^|
accidentally destroyed by fire, rendered o>«>:'''
an inundation of water, or other uoayoidaU"
alty," made a report thereon; which wai
and considered: Whereupon,
Resolved, That it is inexpedient to att^^
the remission of the duties which bareaart^'
may accrue, on distillation, in any c^ vbi^"
Mr. Giles, from the committee appoi**^ "
the thirty-first ultimo, presented a bill to s*^'
the people of the Eastern division of the Terr:
Northwest of the river Ohio to fonnaC'»-
tion and State Government and foriheada«
of such State into the Union on an equal ^''^
with the original States, and for other pa?;^
which was read twice and committed toil- --
mittee of the Whole House on Monday n«j
Mr. Randolph, from the Committee of J '^
and Means, to whom were yesterday referj* ^
amendments proposed by the Senate to tb? '^
entitled "An act to repeal the internal taxe *
ported that the committee had had thesaidac^'
ments under consideration, and directed a^
report to the House their agreement to the ^
A'
.*
1129
HISTORY OF CONGRESS,
1130
April, 1802.
City of Washington,
H. OF R.
A message from the Senate iDformed the House
that the Senate have passed a hill, entitled "An
act supplementary to an act, entitled 'An act for
the encouragement of learning, by securing the
copies of maps, charts, and books, to the authors
and proprietors of such copies, during the time
therein mentioned," and extending the benefits
thereof to the arts of designing, engraving, and
etching, historical and other prints ; to which they
desire the concurrence of this House.
The said bill was read twice, and committed
to a Committee of the Whole House.
The House proceeded to the further considera-
tion of the amendments proposed by the Senate
to the bill, entitled ^*An act to repeal the internal
taxes;" to which the Committee of Ways and
Means this day reported their agreement: where-
upon,
Resolved, That this House doth concur with
the committee in their agreement to the amend-
ments of the Senate to the said bill.
The House resolved itself into a Committee of
*the Whole on the report of the committee of the
twenty-sixth ultimo, on the petition of Richard
Soderstrom, attorney in fact for Paolo Paoly, a
subject of the King of Denmark, referred the
twenty-second of the same month ; and, after some
time spent therein, the Committee rose and re-
ported a resolution thereupon ; which was twice
read, and agreed toby the House, as follows:
Resolved, That provision ought to be made by
law to refund and pay to the petitioner, Paolo Pa-
oly, out of any money in the Treasury not other-
wise appropriated, the sum of seven thousand and
forty dollars and fifty-five cents, it being the
amount of damages and costs of suit awarded by
the circuit court of Pennsylvania, in its judgment
of restitution, on behalf of the petitioner, against
Captain William Maley, commander of the pub-
lic armed vessel the Experiment, belonging to the
United States.
Ordered, That a bill o^ bills be brought in pur-
suant to the said resolution, and that Mr. Eustis,
Mr. Gregg, and Mr. J. C. Smith, do prepare and
bring in the same.
CMtered, That Mr. R. Williams be added to
the committee appointed on the fourteenth of De-
cember last, "to inquire and report whether mo-
neys drawn from the Treasury have been faith-
fully applied to the objects for which they were
appropriated, and whether the same have been
regularly accounted for; and to report, likewise,
whether any further arrangements are necessary
to promote economy, enforce adherence to Legis-
lative restrictions, and secure the accountability
of persons entrusted with the public money," in
the room of Mr. Jones, who has obtained leave of
absence for the remainder of the session ; and that
the said committee have leave to sit to-morrow,
during the sitting of the House.
CITY OF WASHINGTON.
The House again resolved itself into a Com-
mittee of the Whole on the report of the commit-
tee of the twelfth of February last, to whom was
referred a Message from the President of the Uni-
ted States, transmitting^ a memorial and letter to
him from the Commissioners of the City of Wash-
ington; and to whom was also referred, on the
fifth of the same month, a motion respecting the
discontinuance of the offices of the said Commis-
sioners ; and, after some time spent therein, the
Committee rose and reported several resolutions
thereupon ; which were severally twice read, and
agreed to by the House, as follow :
1. Resolved, That, jfrom and after the day of
next, the Board of Commissioners in the City
of Washington ought to be abolished, and thereafter all
the powers vested in the said Board ought to be vested
in, and discharged by, an agent, to be appointed by,
and to be under the control of» the President of the
United States.
2. Resolved, That, prior to the first day of March
next, the said Commissioners ought to settle their ac-
counts with the accountirif ofiicers of the Treasury;
and all debts which have been contracted by them in
their capacity as Commissioners, and for the payment
of which no particular provision is hereinaf\>er made,
ought to be discharged in the usual manner, by the
said agent.
3. Resolved, That so many of those lots in the City
of Washington which are pledged for the re-payment
of a loan of two hundred thousand dollars, made by the
State of Maryland, in the years one thousand seven
hundred and ninety-six and one thousand seven hundred
and ninety-seven, to the Commissioners of the said city,
ought to be annually sold, as may be sufficient to pay the
interest and instalments of the said loan as they may
respectively become due: Provided, That if, in the
opinion of the President of the United States, the sale
of a sufficient number of the said lots, to meet the ob-
jects aforesaid, cannot be made without an unwarrant-
able sacrifice of the property, then so much money as
may be necessary to provide for the deficiency ought to
be advanced from the Treasury of the United States.
4. Resolved, That all the lots in the said city which
were sold prior to the sixth day of May, one thousand
seven hundred and ninety-six, and have since reverted
to the Commissioners, in consequence of a failure on
the part of the purchasers to comply with their con-
tracts, ought to be sold for the purpose of paying to the
State of Maryland the sum of fifly thousand dollars,
with the interest thereon, on or before the first day of
November next ; which said sum was loaned by the
said State, in the year one thousand seven hundred and
ninety-nine, to the Commissioners, for the use of the
City of Washington: Provided, That if a sufficient
sum to meet the objects aforesaid cannot be raised by
the sale of the whole of the lots, then so much money
as will be sufficient to make up the deficiency ought to
be advanced from the Treasury of the United States.
5. Resolved, That all moneys advanced out of the
Treasury of the United States, in pursuance of these
resolutions, ought to be reimbursed as soon as possible,
after the debts already contracted by the Commission-
ers have beeu'discharged, by applying towards the re-
imbursement every sum of money which may be after-
wards raised out of the city funds, until the whole of
the money advanced shall be repaid.
Ordered That a bill or bills be brought in pur-
suant to the said resolutions, and that Mr. Nichol-
son, Mr. Bayard, Mr. J. Taliaferro, jun., Mr.
Hastings, and Mr. Alston, do prepare and bring
in the same.
1131
HISTORY OP CONGRESS.
H. OP R.
Proceedings.
11?;
April i::
Saturday, April 3.
Ad engrossed bill declariug the assent of Con-
gress to an act of the General A^?sembly of Vir-
ginia therein mentioned, was read the third time
and passed.
A petiiion of James Johnson and others, justices
of the court of common pleas of the county of
Knox, in the Indiana Territory of the United
States, was presented to the House and read, pray-
ing that the ordinance of Congress under the
former Government, of the thirteenth of July, one
thousand seven hundred and eighty-seven, may
be so far revised and amended by law, as to give
chancery powers to the judges of the said Ter-
ritory.
Ordered^ That the said petition be referred to
the committee appointed on the fourth of January
last, " to inquire whether any, and what, altera-
ration should be made in the Judicial establish-
ment of the United States; and to report a pro-
vision for securing the impartial selection of juries
in the courts of the United States.^'
A memorial of the Mayor and Commonalty of
the town of Alexandria, in the District of Colum-
bia, was presented to the House and read, stating
the inconveniences and injury sustained by the
poorer classes of citizens in the town and county
of Alexandria, by the operation of the existing
laws for the government of the said District, in
the case of fees allowed to be taxed upon suitors,
to the lawyers, marshal, attorney for the District,
and for the attendance of witnesses, in the circuit
court of the United States, held in and for the
said city and county ; and praying relief in the
premises. Referred.
On motion of Mr. Milledoe, it was
Resolved^ That the Secretary of War be direct-
ed to cause such documents as may remain in the
War Office, or such as he may be able to procure
from the files of the Executive of Georgia, for the
years one thousand seven hundred and ninety-one,
one thousand seven hundred and ninety-two, one
thousand seven hundred and ninetv-three, one
thousand seven hundred and ninety-four, and one
thousand seven hundred and ninety-five; also,
from the agent of the War Department for the
Southern district, for those years; with every
other statement and paper he may become pos-
sessed of respecting the militia claims of that State
against the United States, together with his opin-
ion of the propriety and justice of allowing the
same ; and that he report such opinion and docu-
ments appertaining thereto, on the first day of the
next session of Congress.
Mr. EusTiB, from the committee appointed,
presented a bill for the relief of Paolo Paoly;
which was read twice, and committed to a Com-
mittee of the Whole House on Monday next.
The House resolved itself into a Committee of
the Whole on the amendatory bill further to alter
and establish certain post roads; and, after some
time spent therein, the Committee rose and re-
ported several amendments thereto; which were
severally read, and agreed to by the House.
Ordered, That the further consideration of the
said bill be postponed until Monday next.
A message from the Senate informed thrH.>
that the Senate have passed the bill, eoi ild 1'
act for revising and amending the act^coBCtr.j:
naturalization," with several ameodmeoi :
which they desire the concurrence ofthi<Hc:'
The House went into Committee of the W •
on the report of the committee, of the iiresrvr
ultimo, to whom was referred thepeiiiionc'I-
odosius Fowler, presented the third of Feio-^
one thousand eight hundred and one; and l--
some time spent therein, the Committees...
reported two resolutions; which were read. ici.:.
ed, and agreed to by the House^as follcws:
1. Resolved, That the claim of the UaitedST'
against Theodosius Fowler, for moneys adTir*
or paid on account of his contract with ili;v
retary of the Treasury, dated the tweniTTr:
day of October, one thousand seven hnodk <l
ninety, ought to be extinguished.
2. Resolved, That the suit commenced iy:.*
United States against the said Theodosio} Fi
ler, in the circuit court of the district ci^^f
York, for a claim on account of the said cxi .
ought to be no further prosecuted, aod ii' .-
Comptroller of the Treasury be, andisk-'f
authorized and required to cause the saa •' >
withdrawn.
Ordered, That a bill or bills be brougLt :r:
suant to the said resolutions, and that Mr. E:^
noRF, Mr. L. R. Morris, and Mr. Hclxb
prepare and bring in the same.
Mo^iDAY, April 5.
A petition of sundry citizens of G«orr-'J
and its vicinity, in the District of Colnnii'
presented to the House and read, pray in? --
present directors of '• The Colnmbian brc
Company," therein named, and their le^ ■
cessors, may, by law, be incorporated, mi :>^'
tuted a body politic, with such privil«waj< '
munities as are usual in such cases, m^^"
The Speaker laid before the House a '
from the Secretary of the Treasury, acers^'
ing a statement of goods, wares,and meretui- *
exported from the Mississippi district dune-
year 1801, in addition to the general stattx"
exports received by the House on the elf"'
February last ; which were read, and ordi?
lie on the table.
Mr. S.Smith, from the Committee ol^;;
merce and Manufactures, presented a bill:- •
vide tor the establishment of certain distrid- -
therein to amend an act, entitled "Aoa'J'' ^•
ulate the collection of duties on imporuis.
nage," and for other purposes; which va|'
twice, and committed to a Committee of ih?
House on Wednesday next. .
The House proceeded, at the Clerbi^r
the farther consideration of the amendafLn
further to alter and establish certain pi^^;-
and the same being further amended, JJ*'-
ther with the amendments, ordered to be e:^'
ed, and read the third time to-morrow. ^
The House proceeded to consider m «-';^
ments proposed by the Senate to the biH"^ *'
1133
April, 1802.
HISTORY OF CONGRESS.
1134
French Corvette Berceau
H. OP R.
'^ An id for revising and amending the acts con-
cerning naturalization :" Whereupon,
Ordered. That the said amendments, together
with the bill, be committed to Mr. Mitchill, Mr.
GrODOARD, Mr. Smilie, Mr. Thompson. Mr. Lewis
R. Morris, Mr. Wadswortb. and Mr. Stanpord.
The House resolved itself into a Committee of
the Whole on the amendments proposed by^ the
Senate to the bill, entitled " An act to authorize
the settlement of the account of Samuel Dexter,
for his expense in defending against the suit of Jo-
seph Hodgson ;" and, after some time spent therein,
the Committee arose and reported their agree-
ment to the same. The House then proceeded to
consider the said amendments at the Clerk's ta-
ble: Whereupon, the question being taken that
the House do concur with the Commiilee of the
whole House in their agreement to the same, it
was resolved in the affirmative.
Mr. Van Ness submitted the following re-
solution:
Resolved, That any ship or vessel, two-thirds of
9vhich shall have been, or may be, rebuilt within the
United States, of American materials, and belonging
ivhoUy to a citizen or citizens of the United States, ;
nay be registered, and considered as an American ship
>r vessel : and that it shall be the duty of the collector
>f the district within which such ship or vessel is or may
>e owned, upon satisfiictory evidence of the above facts,
o grant such register, according to the rules by law
»tablished in other cases.
The House resolved itself into a Committee of
;he Whole on the bill for the relief of Paolo Paoly.
rhe Committee reported the bill without amend-
ment ; and it it was ordered to be engrossed, and
-ead the third time to-day.
A bill from the Senate for the better securing
)f public propertv in the hands of public agents,
was read a second time.
Mr. Bayaru stated the great inconveniences
which, in his opinion, would arise from the provi-
sions of this bill ; one of which made the bondsgi ven
)y the public agents a lien on the landed property,
he existence of which bonds, not being entered
)f record, could not be known to the purchaser.
Vlr. B. stated further reasons, which induced
lim to more a reference of the bill to a select
;ommittee.
After a short discussion the question of refer-
mce obtained.
Mr. Elmendorp, from the committee apppoint-
fd, presented a bill for the relief of Theodosius
i^owler ; which was read twice and committed
0 a Committee of the whole House to-morrow.
CORVETTE BERCEAU.
Mr. Griswold remarked that much had been
laid respecting the money expended on the Ber-
;eau. In order to obtain correct information he
submitted a resolution substantially as follows:
Resolved, That the Secretary of State be directed to
-eport to this House whether the sum of $32,839 54,
aid out in repairing the corvette Berceau, before her
lelivery to the French Republic, was expended, in or-
ler to equip her for the service of the United States,
>r for the purpose of delivering her to the French Re-
I
public, agp'eeably to the stipulations of the Convention
between the United States and France.
Mr. S. Smith said this object had been alreadF
reported upon, ani full information obtainea*
Now gentlemen. want to arrive at the motives of
the Executive, and desire this House to aid them
in their efforts. He believed, however, it was the
first time the motives of public officers had been
called for by Congress.
Mr. Griswolo. — The fact is ascertained that
the money has been taken from the Navy fund ^
also, that the Berceau became by capture an
American vessel ; but other important facts are
not ascertained. It is a little extraordinary that,
if the repairs were made for the Berceau as an
armed vessel of the United States, they should
have been made after a law had passed reducing
the public armed vessels to thirteen. If the in-
formation reouired be a secret of State, it ought
not to be disclosed ; but I suppose it is no secret;
I see no valuable purpose to be answered by se-
crecy. Further, when these repairs were put on
the corvette, the convention was partially rati-
fied, and the vessel in fact was given up before
the treaty was returned from France. I suppose,
therefore, the repairs were put upon her for the
purpose of delivering her up to the French Re-
ublic. I wish to know whether they were made
or this object.
Mr. S. Smith. — The gentleman from Connec-
ticut is under a mistake. The Berceau did not
become a vessel of the United States in conse-
quence of her capture. She was purchased in by
tne Navy Department. I believe that everything
the House has aright to demand from the Execu-
tive has been given. I do not see the reason for
asking why the Executive did such or such a
thing. The House have a right to ask for facts,
but not opinions.
Mr. Giles hoped the resolution would be suf-
fered to lie on the table. He did not believe there
existed any precedent to warrant it. He was
surely one of those who desired everything to be
disclosed. He believed, however, the Secretary
of State knew nothing about the business of the
Berceau, which came not properly before his de-
partment. Much had been said respecting the
Berceau. He believed very little could be ob-
tained by gentlemen from all the inquiry they
could make. The fact was, that, under tne late
Administration, the Berceau had been purchased,
and by the late Secretary of the Navy, for the
purpose of delivery. This information, Mr. G.
said, he had from the late Secretary himself.
Mr. Bayard. — The honorable gentleman from
Virginia has given the House sufficient cause for
complying with the wishes of the mover of this
resolution. He has stated certain information
obtained by word of mouth from the late Secre-
tary of the Navy. I also possess information de-
rived from the same gentleman, but directly the
reverse of that given by the gentleman from Vir-
ginia. My information, too, is extremely recent,
and therefore such as I cannot but depend upon.
However, all this shows the necessity of having
written and official information, which can be sub-
1135
HISTORY OP CONGRESS.
113
'j\i
H. OP R.
French Corvette Berceau.
Apbiu Vtz.
ject to no miscoDceptioD. As the gentleman has j secret in this business, I read in a late debate, u l
staled his information, I will stale mine, received ' ' '
recently from the Secretary at a dinner table.
From the late Secretary, I understood that after
the proceedings in the district court of Massachu-
documents then in my possession, wbaieTtr r-
lated to it. The aYgumenis of gentlemen i^.v
that the resolution should be suflfered to lie u& \x
table. If it is sent to the Secretary of Su^a
setts, and the property was ordered to be sold, it will reply, that he knew nothing about the b^-
was thought by the Secretary of the Navy ttat
there wotild be a ^reat sacrifice, and he directed
her to be bought in ; but he expressly directed
that there should be no repairs made, as it was
not then known whether she would be the prop-
erty of the United States — his orders directing
barely so much to be done as to prevent the cor-
vette from being deteriorated. I also understood
that the gentleman from Maryland, (Mr. S.
Smith,) the day after the former Secretary went
out of office, ordered the repairs.
I do not see how gentlemen can resist agreeing
to such a resolution — a resolution which simply
calls for information. It is said the Secretary of
State knows nothing about the business. If so,
it is easy to insert the name of the proper officer,
viz : the Secretary of the Navy.
The information required is proper for this
House to possess. Before this Congress, I never
knew that any information had been refused, ne-
cessary to enable the members to form opinions
on subjects properly under their direction. If
such information ever has been received, it was
wrong, and the presedent ought not to govern us.
The gentleman from Maryland says we are not
to call tor this thing or that thing from the Exec-
utive officers. But if such a doctrine as that pre-
vails, they will soon cease to be the servants of
the nation. And surely they have at present no
reason to complain of the trouble we give them,
as we are about to be liberal and to augment their
salaries.
This resolution contains no reference to mo-
tives; it is an inquiry into facts, whether the re-
pairs put upon the berceau were made for the
purpose of retaining her as an armed vessel of
the United States, or for the purpose of delivering
her to France under the convention with that
nation. Are not these facts ? Are France and
the United States the same nation ? Gentlemen
can discover no other way of getting rid of this
resolution, but by declaring an identity between
them. Were we to call upon the Executive to
say why the Berceau was delivered to the French
Government, e^entlemen might complain ; but we
simply ask a lact.
It it shall be replied that the repairs were made,
in order to deliver her up to France, I am not
prepared to say they were improperly made. Af-
ter the answer is given it will be in season to
judge. Our object in making this motion is no
secret. We wish to know from what fund the
money has been taken, or whether from any
fund. Holding the purse-strings of the nation,
we have a right to be acquainted with these cir-
cumstances; that if public money has been prop-
erly disbursed, we should be satisfied of the fact ;
if wrongly disbursed, that such fact also should
be known to us.
ness. It does not properly come under his >
partment. Why, then, refer a business to j^l
which he cannot elucidate, especially when ^
ill state of health should recommend fQ^b^Ja^^
The statement of the gentleman from Ddawi?
is not entirely correct; indeed, I am inclined u re-
lieve with him, that he received it at a dinner uk.
I believe the whole letters will be exhibitei ii:
that there is not the least secret in the wbc.cL-
fair. It is true, that the last order was girea ^t
me. But before issuing that order, it was sutz :-
ted to the former Secretary of the Navy, an J u*
letter accompanying it was draiv^n by hi««iT..-<
and with his apptobation. The fact is. tba «.
that time I was engaged in rendering some 2^s-
ance to the department, until it should be t^ti :
a permanent officer, and that the place was cifK
to me and other gentlemen. That letter. ;o .n •:
I have just alluded, gave instructions tope: ::«
Berceau in the precise situation she was isj^i:^
period of capture.
Mr. Dana said there might be an errcr^tiK
style of the resolution, and it might be prsfe^L
substitute Secretary of the Navy in the rocs..:
Secretary of State.
Mr. Giles. — The gentleman from Dcla^ir-
says, that the information to him by the late Sr-:-
retary of the Navy differs essentially frcm *ir
given by me. I believe that is nottheca$€. T--
information given to me was not verbal, but wr >
ten. The only difference between thegentka::
and myself is, that he states that the late Sfc:^
tary did not give the orders, whereas I suid c:»
he bad advised and approved them on a DevSti
retary coming into office.
Mr. BAYARn. — I certainly thought there n:<
material difference between our statemests -
understood that ffentleman (Mr. Giles) it wi^
said that the orders were actually given K v
former Secretary. I may have forgouen ▼:*
he said ; or he may have forgotten, and may ^-
himself at liberty to retract his expressions. ^'
are now told that the late Secretary only afi'----
and approved. I was correct, therefore, ia ^'*
ing the orders were not given by the la» ^'
retary.
I cannot ^ay with certainty what the pr:n
opinion of the former Secretary is. laiiLi-*
ever, rather inclined to think, though I expr^^-
doubtfully, that his opinion was, that the rfp*-''
were proper.
The gentleman from Maryland says my ?x-
ment is not correct, and adds, it may hare t*?
obtained at a dinner (able. But it is perfec;]i -"-
material whether obtained at a dinner or a hns
fast table. That gentleman, though fros: :>
situation better acquainted with the circamsm.'^
of this transaction than any member ontiii&t'
has not invalidated any part of my staiemni
Mr. S. Smith. — So far from there being any | I do not, however, wish to inquire into tk:
1137
HISTORY OF CONGRESS.
1138
April, 1802.
French Corvette Berceau,
H. ofR.
vate opinions of the Secretary of the Navy, either
those of the past or present officer. I do not know
what they have to do with the subject before us.
If the orders were given under the present Secre-
tary, or the past Secretary, still the President is
answerable for them, and it is totally immaterial
who was consulted on the occasion. Our only
wish is to get this information, and why we are
denied it I am at a loss to know.
Mr. Randolph moved to postpone the resolu-
tion till to-morrow. He was not disposed to deny
gentlemen any proper information that they might
want. But gentlemen have so repeatedly asserted
that there was a disposition in those opposed to
taking up this resolution, at the present time, to
deny all mformation.
Mr. Bayard said the gentleman was mistaken;
he said no such thing.
Mr. Randolph. — The gentleman asked, why
evince this disposition to deny information ? Does
not the House recollect the words? We have so
often heard from gentlemen what are and what
are not precedents that have taken their rise in
this House, that sometimes I have been tempted
to doubt whether I have heretofore been a mem-
ber of the House. But I will refer to a case where
information was asked and denied ; such informa-
tion as, in the opinion of those who required it.
was calculated to criminate the Executive; and
on the refusal of which another resolution, appro-
batory of the conduct of the President, was
grounded. Gentlemen on that occasion declared
that they wanted information to form their judg-
ments ; yet the information was denied.
[Mr. Randolph referred to the case of Jonathan
Robbins.]
I am not, however, for imitating gentlemen in
refusing information. But I think it improper to
act on a minute's notice. If the information asked
be so important, I see no reason why a motion for
it was not brought forward at an earlier day. I
see no reason for demanding us to act instanter,
at a period when important business is pressing
upon us. I should, indeed, wish to see the practice
introduced of notice being given of all business of
importance. It is known, that though not strictly
conformable to the rules of the House, commit-
tees do sit during its session. Without such no-
tice, opportunities may be watched, and seasons
seized for unfairly carrying a favorite measure.
Mr. Bacon hoped the consideration of the reso-
lution would not be postponed. Gentlemen say
there is nothing so intricate in it. It only requires
facts to be exposed. They disclaim all relation to
views. Now, what facts do gentlemen want 1 . 1
verily believe the official documents before the
House display every fact in relation to the business ;
one fact is, that the Berceau has been repaired ;
another is, that she has been delivered to the
French Republic ; and from these facts it is for
us to infer the design.
Mr. S. Smith said he was against the postpone-
ment. He wished to meet the object fairly. He
hoped, therefore, tRe gentleman from Connecti-
QUt would withdraw his motion, or that the House
would reject it, for the purpose of introducing in
its room one which he held in his hand, and which
he read, (calling upon the Secretary of the Navy
for all papers respecting the repairs of the Ber-
ceau.)
Mr. Griswold. — I hope the consideration of
the resolution will not be postponed. There is
no perplexity in the resolution proposed by me;
it is even more simple and correct than that of the
gentleman from Maryland. By the Messages re-
ceived from the President, this subject appears to
be before the Department of State.
Mr. Randolph withdrew his motion .of post-
ponement. He said he would only observe, that
all the information gentlemen wanted had been
already given. Both the gentlemen from Con-
necticut and Delaware were members of the Com-
mittee of Ways and Means. They cannot surely
have forgotten the answer of the Secretary of the
Navy to a letter from the Secretary of State, who
had been applied to on the subject by the Com-
mittee of Ways and Means. The amount of that
answer was, that the Berceau, being a vessel of
war of the United States, was repaired, and the
expemses of repair derived from the fund provided
for the repairing national ships. Gentlemen, there-
fore, must know, not only the amount of the re-
pairs, but also the fund from which those repairs
were paid for.
Mr. Bayard believed the better way would be
to call upon the President to decide whether the
repairs were made on the Berceau as a national
shin, for the purpose of her delivery to the French;
and, also, to lay before the House' the papers, &c.
Mr. B. said the gentleman from Virginia, (Mr.
Randolph,) had c^served that there was one
case in which the House had requested informa-
tion, and that was the case of Jonathan Robbins.
He hoped the gentleman from Virginia, (Mr.
Randolph,) would excuse him for correcting his
statement, which *he would do by appealing to
the Journals, from .which it w'ould appear that
the only infx)rmation sought was received and
acted upon. He remembered, too, that the in-
formation required by the motion of a gentleman
from New York jvas of such a nature as to wound
the feelings of the then President, inasmuch as it
was contemplated as the ground of severe crimi-
nation ; yet the information was not refused.
[Mr. B. here read extracts from the Journal in
the case of Jonathan Bobbins.]
He said he hoped the same course would be
pursued on this occasion that had been on that.
As to the information being before the Com-
mittee of Ways and Means, that was altogether
immaterial, since the information possessed by
that Committee was not in the possession of the
House; but the information possessed by that
Committee does not go to the extent of the reso-
lution; it only goes so far as to ascertain the
amount of expense and the fund from which it
had been drawn ; whereas the object of thi.s reso-
lution is to ascertain whether the repairs were
made for an armed national vessel, or for a vessel
to be delivered to the French under the stipula-
tions of the convention.
Mr. Randolph said he did not expect that any
1139
HISTORY OF CONGRESS.
1140
H. OP R.
French Corvette Berceau.
April, 1802.
difference of opinion would have been manifesied
OQ the facts stated by him to have taken place in
the case of Jonathan Robbins. He did not state
those facts with any view to the drawing them
into a precedent on this occasion for refusing in<
formation. God forbid ! that this or any other
of the transactions attending that case, should be
called up by him as a precedent to influence (he pro-
ceedings of the House. But he had stated it as a
fact, to demonstrate the inconsistency of gentle-
men, that information contended to be necessary
by several members on this floor had been denied
by the majority.
[Mr. R. here read extracts from the Journals,
to show that in the case of Jonathan Robbins, a
resolution had been offered for obtaining a certifi-
cate of the proceedings of the Federal court, rela-
tive to the delivery of Jonathan Robbins ; which
resolution was rejected — yeas 44, nays 57.]
Mr. R. said that from the Journals it appeared
that among those who voted in the negative were
the honorable gentlemen from Delaware and Con-
necticut, (Mr. DAYARD and Mr. Griswold.) He
said he had never asserted that information «sked
in this caise from the Executive had been with-
held by the Executive ; but he had said that in-
formation decisive. perhaps, of the important ques-
tion before the House, had been withheld by the
vote of the majority. The proceedings of the
court, and the evidence there given, were the
Jivot on which the case turned, viz: whether
onathan Robbins was a citizen of the United
States or not.
Mr. Griswold agreed to modify the motion by
introducing Secretary of the Navy, in the room
of Secretary of State, and tS add to his original
motion, the words calling for papers, as proposed
by the gentleman from Maryland, (Mr. S. Smith.)
Mr. S. Smith said, he then moved to strike out
all the resolution, excepting that which called for
papers.
Mr. T. Morris called for the yeas and nays on
striking out.
Mr. Nicholson. — I shall vote for the amend-
ments. This is the first time I have ever heard
public officers called upon to assign their motives
of action. That the Berceau has been repaired,
and $32,000 expended, is known to the gentlemen,
and not denied by us. Gentlemen do not pretend
to say they are not acquainted with these circum-
stances. But they are not satisfied with a knowl-
edge of these facts, but offer a resolution requiring
the Secretary of the Navy to do a thinff not in
his power to do. The fact is he was not in office
when these repairs were made. Now, what was
the view with which these repairs were made by
the former Secretary of the Navy, or by my col-
league, who was in the temporary discharge of
the duties of the Navy Department, it is impossi-
ble for the present Secretary to say. But even if
the information could be furnished by the present
Secretary of the Navy, I cannot see the propriety
of calling upon him for his motives, which can-
not vary the propriety of the measures. The ship
belonged to the United States; there existed a
fund out of which vessels of the United States
are repaired ; out of this fund the Berceau was
repaired. Now, where can be the use of inquir*
ing into the motives of the Executive? We know
that the Berceau was delivered to France re-
paired. It* improperly delivered, that will form a
subject of distinct consideration. The gentleman
from Connecticut says he wants information. All
the information the gentleman desires is already
before us, derived from the report of the Secretary
of the Navy. Gentlemen who support this reso-
lution might as well call upon the President to
inform them with what view he has recommended
certain things to our attention in respect to the
Judiciary, the internal taxes, and other subjects.
Mr. S. Smith said, that though he thought the
call now made improper, yet being willing to give
gentlemen all the information they desired, he
would withdraw his motion to strike out, suggest-
ing the propriety of amending the resolution by
introducing the words ^4o purchase," before the
word '* repairs."
Mr. Griswold said he had no objection.
Mr. EusTis said he hoped the amendment
would go further, and state tne " time of sale, pur-
chase, and repair ;" then the whole business would
be before us. This was the more important, as a
very material fact was involved in the sale.
Mr. Griswold had no objection to making the
resolution as extensive as was desired by the gen-
tleman from Massachusetts. Gentlemen are not
correct in saying this resolution is a demand of
motives. I will mention a parallel case in which
gentlemen will not say that similar information
will not involve important, and even necessary,
facts for us to know. Suppose an appropriation
is made for cannon ball lor the Army, and one
also for the Navy — a purchase of this article is
made in the interior of the country — ^it is neces-
sary to know for which department the purchase
is made, that we may determine whether the
money disbursed is taken from the Army or Navy
fund. So, in this case, it is equally necessary that
we should know whether the Berceau was re-
paired for the service of the United States, or to
be delivered up to the French nation, that we
may determine whether the proper fund has been
drawn on.
Mr. Giles said, that though he concurred with
the ^eiuleman from Maryland, that this was an
inquiry into motive, and though it appeared to
him to be a pernicious precedent — one which
might lead to improper purposes — yet to satisfy
the zeal of gentlemen, he wa$ disposed to vote for
it. He said he had never felt any disposition to
deny useful information to the members of this
House, or to the people. So far from that being
the case, he had sometimes voted for information,
to satisfy the wishes of gentlemen, even when that
information was already on the table.
The case put by the gentleman from Connec-
ticut (Mr. Griswold) was not apposite. It would
have been apposite had there oeen connected
therewith an inquiry into the motives of the Ex-
ecutive in the purchase. As' well might we, said
Mr. G., demand of gentlemen their motires for
this resolution; we might say it was designed to
1141
HISTORY OP CONGRESS.
1142
April, 1802.
French Corvette Berceau,
H.opR.
excite popular clamor — not that he believed it
would have that efiVct. for h^ knew that the more
the actions of the Executive were examined the
more they would be approved.
There was one insinuation often made, not
:>nly here, but throughout the United States, that
i moment's reflection would dissipate — an insin-
uation that could not produce the effect intended —
in insinuation that the measures of the Execu-
live, in the delivery of the Berceau, were grounded
3n a disposition to favor the French Kepublic.
Mr. G. said, he would ask whether such an in-
sinuation was not the most vain, unfounded, and
irrational, that could be conceived ? He would
beg gentlemen who fostered it, to turn their atten-
tion to the situation of the French Republic, and
they would there see whether there was the
smallest probability, or least possibility, of the ex-
istence of any sympathy between the Executive
}f France and the American Administration ; they
would see whether, in their principles, they agreed
in a single point. It may not, perhaps, be strictly
proper on this floor to say anything of the lean-
ing of our Executive to European Powers ; but,
)n this occasion, it might be permitted to say that
:here was no analogy or sympathy between the
Executive of the one country and the other.
There could be no analogy or sympathy while
he measures of the two Administrations were so
essentially different. Mr. G.said. he believed the
Executive entertained no sympathy or predilec-
:ion for any European Powers ; but there was not
I reflecting man in the United States, in France,
>r in the uorld, who marked the course of the
;wo Governments of the United Slates and France,
who would not mark the essential difference be-
tween them. All this, Mr. G. said, he did not
express from any kind of authority, or from per-
lonal acquaintance with the Executive Magis-
trate, but from the reflection of his own mind.
Mr. Bacon moved for a division of the ques-
tion. He was in favor of that part of the resolu-
tion which called for papers, but opposed to that
?art which related to the design of the Executive.
Mr. T. Morris moved so to amend the resolu-
tion, as to make it read that the President be re-
luested to inform this House — with the variation
It the close — and to direct the proper officer to lay
)efore the House papers, dec.
Mr. Griswold agreed to this modification;
when, on .motion of Mr. Nicholson, the House
idjourned — yeas 55, nays 30.
Tuesday, April 6.
An engrossed bill further to alter and establish
certain post roads was read the third time, and
)assed.
An engrossed bill for the relief of Paolo Paoly
was read the third time, and passed.
The Speaker laid before the House a letter from
the Secretary of the Treasury, accompanying his
report on the petition of Arthur Morrison, referred
to him by order of the House, on the fourth ulti-
mo; which were read, and ordered to be cotbmit-
ted to a Committee of tne whole House to-morrow.
Mr. Samuel Smith, from the Committee of
Commerce and Manufactures, presented a bill to
amend an act, entitled '* An act for the relief of
sick and disabled seamen," and for other purposes ;
which was read twice, and committed to a Com-
mittee of the whole House on Thursday next.
The House resolved itself into a Committee of
the whole House on the bill for the relief of
Thomas K. Jones which was reported without
amendment and ordered to be engrossed and read
the third time to-morrow. •
On motion it was
Ordered, That the Committee of the whole
House to whom was committed, on the thirty-first
ultimo, a letter from the Secretary of the Treasury,
accompanying sundry documents relating to the
claim of Cfomiort Sands, and others, be discharged
from the consideration thereof; and that the said
letter and documents be referred to Mr. Bacon,
Mr. ThomAs, Mr. Goddard, Mr. Hanna, and Mr.
Clay.
CORVETTE BERCEAU.
Mr. Griswolo said, that in order to meet the
ideas of gentlemen who had spoken yesterday, he
would withdraw the motion he had made, and in
the room thereof propose the following:
^Retolvedj That the President of the United States
be requested to direct the proper officer to report to this
House, whether the sum of 32,839 dollars and 54 cents
was expended for repairing the corvette Berceau, after
it was determined to deliver up the same to the French
Government, agreeably to the stipulations of the con-
vention between the United States and France ; and to
lay before this House copies of all papers and documents
which relate to the sale, purchase, and repairs of that
vessel."
Mr. Giles moved to strike out that part which
related to the purpose of the Executive. He said
he wished to carry the point of information as far
as ajiy person; but he believed that going the ex-
tent of the motion was going beyond the powers of
the House ; as he believed tnat m the present case
the provisions of the treaty were merely of an Ex-
ecutive nature, and the repairs made of the same
nature. He had himself, m his personal capacity,
no objection to the President fully developing his
motives, believing those motives to be highly non-
orable; but he did not wish unconstitutionally to
interfere with the Executive Department. We
have heretofore beard much about the independ-
ence of the departments and particularly of the
Executive Department. He believed that during
the period when a description of citizens now the
majority, were in the minorinr, and who were
then branded with the name of disorganizers, no
such motion had ever been made by them. He
knew not the views of gentlemen, who now made
this motion; but it appeared to him the most dis-
organizing motion that had ever been made in that
House.
Mr. G. said he held in his hand a paper which
showed that which he had yesterday stated was
perfectly correct. He would therefore, again re-
mark that the business had taken its direction
under the former Administration, and had been
1143
HISTORY OF CONGRESS.
Il4i
H. OP R.
JFYenck Corvette Berceau,
Apbil, I5V
only continued in that direction by the present
Administration.
Mr. G. concluded by moving to strike out,
^^ whether the sum of 32,832 dollars 54 cents was
expended for repairing the corvette Berceau. after
it was delermined to deliver up the same to the
French Government, agreeably to the stipulations
of the Convention between the United States and
France, and."
Mr. Bacon believed the resolution required ex-
planation. It indicated, perhaps, too great jeal-
ousy of the motives of the Executive. He was
at a loss to know what was referred to by the
words "after it was determined;" by whom deter-
mined ? By the President of the French Republic ?
Mr. Gribwold trusted the amendment would not
prevail. The French corvette has been delivered
up. This is a fact. The gentlemen has expound-
ed this to be an Executive act. The vessel could
not have been delivered without the determination
of the Executive. Now, we are not for inquiring
into the motives of the President. We state the
facts, that the repairs have been made, the vessel
has been delivered, and the determination must
have taken place before the delivery; we ask then
why gentlemen refuse us the knowledge of the
fact whether the repairs were made after it was
determined to deliver the Berceau to the French ?
This is a fact; it is not a motive. These 32,000
dollars are public money, applied to the support
of the Naval Establishment. We wish to know
whether this sum has been properly or improperly
applied to naval purposes as appropriated by law,
or whether it has been applied to the execution of
a treaty. That that treaty ought to be carried in-
to execution cannot be doubted. This we all ad-
mit. But we say that this money ought to be
taken from its proper fund. I do not see why gen-
tlemen deny this mformation. Our only inquiry
is into certain facts; and I have never known such
an inquiry prohibited. We are not inquiring in-
to the secret motives of the Executive for carry-
ing this treaty into effect before it was ultimately
ratified by France. That measure was probably
correct. The fact is well known, and yet I hear
no gentleman condemn it.
The objections, therefore, of gentlemen are in-
correct. We are not for inquiring into the secret
motives of the President; his motives were un-
doubtedly virtuous and honorable, and his meas-
ures may have conduced to the welfare of the
nation. But we simply want the fact whether
the repairs were made before or after the determi-
nation to deliver the corvette to the French. This
House has a Constitutional right to inquire into
the faithful expenditure of the public money. We
appropriate money for a marine barracks, and we
find a Secretary of the Navy building with the
public treasure an extensive house on his own es-
tate; have we not a right to inquire for what pur-
pose the money is applied? — to know whether the
appropriations made by law have been observed ?
This is all we now desire; that we may ascertain
whether the money laid out on the Berceau has
been applied to naval purposes, or to other purpo-
ses. This we have a rignt to know, and I think |
gentlemen cannot refuse it. Mr. G. coociad^^
asking for the yeas a^d nays.
Mr. T. Morris was astonished genilemeQ&
terfered to prevent information being given to r?
House. What ! Have we not a right to k^-.v
how the public money has been applied ? !iiT«
we not a right to know how these 32,000 ^c-l
have been expended ? We know they have ie«
expended ; we know there is no fund oat of vLa
the money could have' been taken. Hare we t':^
not a right to inquire into the circumstances n-
ii<v
tending the disbursement^ and shall we be
that in making this inquiry, we are yrjinz u .
Executive secrets! This is indeed going iin^
than has ever been done before. The sestlcQi:
from Virginia says, the conduct of the ExecsL;:
will redound to his honor — why not then discLz
the circumstances attending that condncL
Mr. Davis. — Gentlemen were all day yesterdi.
employed in framing a resolution ; someume^ y.-
posing one amendment, and then witbdnw:-.:
that amendment to make room for anothef ; 112
now. when it is nearlv fitted to the mind dtii
whole HousQ, it is wilndrawn by the moT€r;Mr.
Griswold) and another substituted in is fiat
and we are again to occupy a w^hole day 3 dik-
ing about it. For what is this proposed! At
we about to engage in any Legislative ux litf
renders it necessary that we should have the ci'r-
mation it asks ? If we are not, I cannut see 6^
propriety of so much useless discussion ih^^i -
I therefore, move that its further considerancs >
postponed till the third Monday in NoTember; vl
I hope those who are for going on with the p:i:-'
business will agree to postpone it till that i.^
and let those gentlemen, whose curio^it^ itl:
them to pry into the motives of the EzecutiTr r
to the public offices, and there obtain the tr*^'-
mation they say they want, while "we are prosTts-
ing in the public business.
Mr. Lowndes said he was one of those wh:"-
most anxiously wished the public bus^iaess ie-
patched. But he knew no business so impcniL
as that which respected the expenditnres cf ::
public money. He did not conceive that :-
solitary objection could be urged against the s-
tion. Grentlemen say, we are calliog upo^ tr
Executive for his motives ; but, Mr. L sai.. >^
did not understand the English language, it::-;
resolution involved an inquiry into motives t
the answer of the Executive shall be that v:^
repairs were made in order to restore the Bcrttn^
to the French, will that be anything like a raotiT'
Is it not a simple and abstract fact ? Suppose :'-
answer given shall be, that the Berceau w:»5 r^
paired that she might be employed in the sernr.
of the United Slates, will that be a motive ?
will be a simple abstract fact ; gentlemen, in in-:
to resist the motion, are driven to the shift of s;
ing, we are forced into Executive motives.
Mr. Lowndes said, he was also anxious :U
the resolution should prevail, for the rea^o: ^
signed by a gentleman from Massachusetts, 'j^
EasTis,) who had stated, that some iraporx
facts were involved in the business. That r*
tleman, and gentlemen on his side of the Ho<^«
1145
HISTORY OF CONGRESS.
1146
^PRiL. 1802.
French Corvette Berceau.
H. OF R.
may be acquainted with these facts from the facil-
ity with which they are enabled to get informa-
Lion from the Executive offices ; but are not we
entitled to the same information derived from
official sources?
The gentleman last up asks for what purpose is
his information wanted ? — is it intended as the
rround of a Legislative act ? The proper answer to
iuch a question is, that we must have the informa-
ion first. If the repairs were made to fit the
Berceau for the public service, Mr. L. said the
expenditure was unwarrantable ; and if they were
nade in order to deliver her to the French, he
nrould say, the expenditure was without law.
The gentleman from Virginia has said, that he is
lot disposed to be economical of information, but
hat his economy would be directed to the expendi-
nre of public money. If so, he ought not to oppose
his motion.
Mr. Giles said he had never been disposed to be
•conomical of information. His only object at
present was to be economical of an invasion of
he Executive Department. He was not disposed
o deny an atom of mformation that was required
0 enlighten our minds; and the resolution, as
Qodified by his amendment, would give eentle-
oen all the information that is proper to be fur-
lished. The gentleman from South Carolina
ays he has not the same facility with us of ob-
amin^ information ; and he immediately goes on
0 decide on the conduct of the Executive, and he
ays that conduct is not lawful. But, on inquiry,
t will be found that both the past and present
Administration believed there was a law which
varranted all the steps taken.
Gentlemen were informed yesterday, that the
berceau was purchased under the old Adminis-
ration. This is a fact. It is also a fact that the
lurc based money was paid out of the contingent
and of the Navy Department, and that the repairs
vere made out of the same fund. Gentlemen
ay they wish to know the purpose, and not the
motives of the Executive, as if purpose did not
Qvolve motive.
It had been truly said, there was no precedent
or such a motion. If there were one^ gentlemen
(Tould, without doubt, have brought it up. The
lost notable precedent that bore any application
3 the present case was that under the British
[*reaty. On that occasion we only asked the Presi-
ent to lay such information before the House as
Q his opinion might be disclosed without incon-
enience to the nation ; and yet for this reasona-
le request we are branded with the reproachful
pithet of di&orsanizers. But nowgentlemen, who
rere then so liberal in their reproaches, call upon
lie Executive to state — ^not any particular infonna-
ion in his possession, but the purpose for which
le did certain acts. Notwithstanding the dis-
inctions of gentlemen, we do understand the En-
;lish language very differently from them if they
[o not admit that the term purpose includes in it
aotive and inducement.
However, if gentlemen will examine the reso-
otion as it stands, after striking out the first part
if the sentence, they will find that it will give
them all the information the President can furnish
from which any inferences can be drawn.
Mr. G. believed the purchase of the Berceau
had been made under the old. Administration ; he
believed it had also been made out of the Navy
fund. For what purpose she was purchased was
not specified at the time ; and it would have been
improper if it had been specified. After being
purchased, she had been dismantled ; and it was
to this circumstance that the consequent embar-
rassment was to be ascribed. The repairs were
only such as to place her in the situation she was
in when captured. All this information will be
derived from the resolution which shall remain,
after the words are stricken out which I have
moved to strike out. Is not tnis information
enough? Shall we go on and say to the Execu-
tive, why did you this or that act ? M/. G. was
of opinion that it would be improper to reduce him
to the necessity of refusing our request, which he
believed he would and ought to do, as no right to
make the request beloogs to us. He at the same
time declared himself as averse to concealment
as any man. He concluded bv saying that he
was happy to find gentlemen on the opposite side of
the House actuated by so lively a spirit of inquiry ;
he hoped they would continue to be animated by
the same laudable spirit, as ^ this way the Gov-
ernment would be kept pure. The principle of
giving all useful information was that of the pres-
ent Administration, and he trusted it would be
extensively practised, though he was not for carry-
ing it so far as to interfere with the right of the
other departments.
Mr. LowNDEB. — The gentleman has miscon-
ceived me. I did not say there was no lesal ap-
propriation for repairing the Berceau. Tnis we
cannot know until we shall hear with what view
she was repaired.
The gentleman says the order to repair was
given under the former Secretary of the Navy.
But it is quite immaterial to me and to the House
under what Administration it was given. It is
possible it might have been given by the late Sec-
retary of the Navy, and notwithstanding be the act
of the President, as that officer continued in jthe
Elace for some time, under the present Chief
lagistrate.
Mr. Bacon required to know what the original
resolution could precisely mean ? What can the
phrase determination refer to? Does it mean
after the Executive had made up his mind to sign
the convention, after he had actually signed it, or
after the Senate ratified it 1 Surely it is so vague
and inexplicit that it requires explanation before it
is adopted.
Mr. S. Smith said, he did not rise to take a part
in the debate ; but barely to notice a remark made
by the gentleman from Connecticut (Mr. Gris-
wold;) a remark not probably nfeant to have the
efiect which it might have, if suffered to pass unno-
ticed, upon the public mind. 'He alluded to that
part of the gentleman's speech, which put the
case of a Secretary of the Navy building a marine
barracks upon his own estate. Lest an uninten«
tional impression should be produced by this re-
1147
HISTORY OF CONGRESS.
114'
H. OF R.
French Corvette Berceau,
Aprii. IS^:
mark, Mr. S. said he would observe that no such
thioj? had occurred in relation to the Secretary
of the Navy; and that the site on which the
marine barracks was built was in the City of
Washington, and had been purchased from the
Commissioners of the city.
Mr. Griswold said he had not the least allusion
to any such thing having occurred. He had only
used 11 as an argument to them, that such an event
might occur.
Mr. G. thought it important that this informa-
tion should be obtained for two purposes. The
first was, in order to pass a proper appropriation
act on the subject. Gentlemen would recollect
that we had replaced the amount of the purchase
money to the Navy fund; if the repairs were made
from the same fund, the amount ought to be re-
placed to the proper fund. In the second place,
It is our duty to inquire into the due expenaiture
of public money. The Constiiutiou requires that
this shall be done ; and if it shall be doubted whe-
ther the Executive has committed a mistake in
the expenditure of the public money, the subject
ought to be inquired into. If it shall appear that
the Executive has committed a mistake, it does
not follow that the Executive is to be criminated ;
the Executive cannot be criminated ; but in such
case there ought to b#an appropriation subsequent
to the expenditure, to cover it. This has been
often done, viz: in the Western Insurrection, more
moi^ey was expended than was authorized by law;
but the expenditure was necessary., the Legisla-
ture deemed it right, and it was covered by a new
law.
Mr. G. wished that the gentleman from Virgin-
ia had stated more clearly how we are impeach-
ing the motives of the President by calling for
this information. We say it is a fact that the
Berceau was delivered to the French nation, that
the expense of repairing her before delivered was
$32,000; and all tnat we wish to know is whether
this expense was incurred before or after the de-
termination to deliver her.
Mr. G. said he would put a case. Suppose a
certain sum of money should be appropriated for
naval purposes. The treaty-makinf power resides
in the President. Suppose he forms a treaty
which stipulates the giving to a foreign Power a
thirty-two gun ship. Suppose, for the purpose of
carrying into effect this stipulation, the President
takes the money necessary to build this ship from
the Navy fund. Would it not be proper in Con-
gress to inquire from what fund the money is
taken? The Executive had actually stipulated to
deliver to the Dey of Algiers, and had built for
that purpose, a thirty- two gun frigate. Yet it had
not beeoLconsiderea that the monev for that ob-
ject coulu be taken from the Navy fund ; but that
It was proper to take it from the fund created to
defray the expenses of foreign intercourse.
This proposed inquiry is not only right, but it
is our duty to inake it, as it may be necessary to
pass a law covering the expenditure. He did not.
oy this motion, mean to impeach the motives of
the President. But when the information we re-
quest is received, we shall be able to judge whe-
ther the President has observed or tnuisgR&ifi
the appropriation law, and whether this has bet:
the act of the former or present President.
Mr. T. Morris had said that $32,000 bad bffi
laid out, without a dollar being appropriiic
This he had stated on the authority ot a paper ei*
hibited by a gentleman from Virginia. It didi>
pear from the letter of the Secretary of the Nu*
that the Berceau was purchased and repaired :
order to be delivered to the French RepaL:
and if the purchase and repairs were made ::
this purpose, he did say the money had bema-
pended without any appropriation by law.
Mr. S MI LIE. — It nas oeen truly said that oo d^
mand similar to the present has ever been made-
nor ought such a demand now to be made. I bcpi
therefore, that the amendment will obtain; u:
that we shall agree to that part of the reiokii^c
which is proper. We have a right to cali fuf it-
pers, and I hope we will exercise that right; bs
we have no right to demand from the Prcsid^u
knowledge of his motives, and I hope we sbal. i^
require to know them. Gentlemen saywer^iK
them information. It is, however, a little tm::-
dinary, how differently the same gentlemesriitt
at different times. In 1796, a proper dema:dva5
made and refused. The President was it^sA
to lay before this House the instruction ?.i a u
our Minister who negotiated the British I'KVs
with the express reservation that he sboaldw.'Jr
hold such parts as it be improper to commoaK^
Yet the request was not complied with 9 2^1
grentlemen will examine the journals they will )»
that the names of the gentlemen from £>«iam^
and Connecticut (Messrs. Bayaro and Gristu:i
are among those who were against giantis« \^
information.
Mr. Elmer said he hoped the postpocea^
would not prevail. He was so solicitoos to rr:
information, that he would a^ree to almost c
mode of obtaining it: though he thoofht Viz
House had nothing to do with the motives &f '>
President, and that, of consequence, the asKK-
menl ought to prevail.
Mr. S. Smith. — The gentleman from Cons*:-
cut has stated a case, in his opinion, analofoc? :
the present — that of the frigate built by a iormr
President for the Dey of Algiers. I remecbr
well that that vessel was built without any aaii^"
ity derived from law. I do not recollect wheur
at the next session of Congress we appropru:££
money for that object; but I remember thai th^K^
it was said to be a considerable exercise of psvrc
on the part of the President, it was thought ce :-
whole to be right though there was no appropro-
tion for it.
I remember too that a former Secretary o< Wl-
didj unauthorized by law, build two galleys oar-
Ohio which cost $20,000, for which there was :
appropriation; but the expenses *of which ver
taken from the Q^uartermasler's department; u-
all this was done without any investi»tion.
With respect to the purchase of the Berecs.
that measure took place on the 19th of Dece&>
Gentlemen say it was under the Treaty. Bui l*
truth ia, that no official information 01 the trei:*
1149
HISTORY OF CONGRESS.
1150
April, 1802.
French Corvette Berceau.
H. opR.
bad then arrived. Notwithstanding this, the for-
mer President had directed the purchase, and per-
haps very wisely. Here then was an expenditure
without any appropriation other than that of the
Navy fund. Of consequence, whatever sum was
applied to the repairs of the Berceau will be charg-
ed to this fund, as well as the sum expended in
the purchase.
Gentlemen too will find, notwithstanding all
they have said, that no order for repairs has ever
been issued; but only an order to inquire into the
situation of the vessel, as to arms, provisions, and
stores, at the time of the capture, and to replace
everything as existing at that time.
The yeas and nays were then taken on postpon-
ing the consideration of the resolution to the third
Monday in November, and lost — yeas 4, nays 75,
as follows :
Yeas — Thomas T. Davis, Daniel Heisteri William
Hoge, and Josiah Smith.
Nats — Willis Alston, John Bacon, Theodonis Bai-
ley, James A. Bayard, Thomas Boude, Richard Brent,
Robert Brown, WiUiam Butler, Samuel J. Cabell, John
Campbell, Thomas Claiborne, • Matthew Clay, John
Clopton, John Condit, Manasseh Cutler, Richard Cutts,
Samuel W Dana, John Davenport, John Dawson, John
Dennis, William Dickson, Lucas Elmendorf, Ebenezer
Elmer, William Eustis, Abiel Foster, John Fowler,
William B. Giles, Calvin Goddard, Edwin Gray, Roger
Griswold, John A. Hanna, Seth Hastings, William,
Helms, Archibald Henderson, WiUiam H. Hill, James
Holland, David Holmes, Benjamin Huger, Thomas
Lowndes, John Milledge, Samuel L. Mitchill, Thomas
Moore, Lewis R. Morris, Thomas Morris, Anthony New,
Thomas Newton, jr., Joseph H Nicholson, Thomas
Plater, John Randolph, jr., Nathan Read, John Smilie,
Israel Smith, John C. Smith,' John Smith, of New
York, John Smith of Virginia, Samuel Smith, Henry
Southard, Richard Stanford, John Stanley, Joseph Stan-
ton, jr., John Stratton, John Taliaferro, jr., Samuel
Tenney, David Thomas, Thomas Tiliinghast, PhUip R.
Thompson, Abram Trigg, John Trigg, George B. Up-
ham, Philip Van Cortlandt, John P. Van Ness, Killian
K. Van Rensselaer, Lemuel Williams, Robert Williams,
and Henry Woods.
Mr. Giles' amendment to strike out recurring —
Mr.BAYARo said, I hope the amendment will not
prevail. I am surprised to find that, notwithstand*
ing the most unlimited professions of gentlemen
to give information, under the most nice and
subtle distinctions, tney now tell us we are call-
ing for information which we have no ri^ht to
possess. It has been said over and over asram that
the acts of this House do not furnish a precedent
for such a refusal. Gentlemen in reply have re-
ferred to several cases. Among these they have
referred to the case of the British Treaty. What
was the conduct of the House on that occasion ?
Did they not enter a resolution calling upon the
Executive to give information. It is true the Ex-
ecutive refused to give it. So, on this occasion,
let us do our duty, and if the Executive is not
possessed of the information we seek, or thinks it
improper to give it, he will say so. Gentlemen
say they hare no doubt but that the conduct of the
Executive will, on investigation, appear laudable.
If so, why refuse to the Executive the opportunity
of exhibiting documents which have convinced
the honorable gentleman, and such as will con-
vince the whole American people of its rectitude ?
For my part, I am not prepared with gentlemea to
applaud the conduct otthe Executive; respecting
the propriety of his conduct, I am neither ready to
doubt nor to believe. The honorable gentleman
from Virginia (Mr. Giles) may be prepared. He
may have access to information which I have not.
If this information be of the kind he represents,
why not furnish it, that the whole American na-
tion may possess the same opportunity of judging
that he possesses?
It is said that we have no right to inquire into
the motives of the Executive. We do not wish to
inquire into his motives; we wish farts. We
want to know whether the Executive did or did
not determine to deliver up the Berceau at a cer-
tain time. Is this a motive? We call it a fact.
The truth is, that under this pretext, if at any fu-
ture time we call for information, gentlemen may
charge us with seeking into motives, and thus re-
sist our reasonable request.
This determination to deliver the Berceau does
or does not appear on the face of the papers before
us. If it does appear, why will gentlemen trouble
themselves in resisting a request at least so harm-
less? But if it does not appear on the face of the
papers, is it not proper to have a direct communi-
cation from the Executive? This information is
most important to us, who wish to know whether
the Berceau was repaired as a French or Ameri-
can vessel ; that we may know whether the price
of those repairs has been taken from a legal fund.
If she was repaired as an American vessel, the
expenditure was legal; if as a French vessel, it was
not legal. Will gentlemen say it is unimportant
to determine whether the legal application of mo-
ney has been observed ? This information is also
important to determine the propriety of the extent
of the repairs made. If the Berceau was repaired
as an American vessel, the extensive repairs may
have been proper and reasonable; but if she was
repaired as a French vessel, they appear to have
been wanton and extravagant. To make such
repairs we were not bound by treaty. I will agree
that we were bound to restore her in the state in
which she was brought in, but not in the state in
which she was previous to the engagement; be-
cause that engagement was a legitimate act, as we
were then in a state of war. We were simply
bound to place her in the condition she was in
when the treaty was formed : and I apprehend
that would not have cost $32,1)00.
Mr. Bacon. — Gentlemen are correct in denying
the similitude of any precedents to the present
resolution. I do not believe that a similar prece-
dent can be found on the journals, or anywhere
else, except in those Popish countries where there
are inquisitions. Gentlemen disclaim inquiring
into the motives of the President. But does not
the determination they wish to arrive at the know-
ledge of, involve motive? And of whom? Of the
President. The only object then of this motion is
to find out the secret design of the President. For
such an inquiry, can you find any precedent extant
1151
HISTORY OF CONGRESS.
IK
H. OP R.
French Corvette Berceau,
Aphiu \^:.
but in countries where there are established in-
quisitors ? And this is a foreign authority that I
should scarcely expect the gentlemen to quote in
this House. I repeat it, this resolution can mean
nothiner else than to ferret out the secret intentions
of the President: and gentlemen dare not face
these remarks by saying with what intention it is
really made.
Mr. GoDDARD said he did not know that a free
country could furnish a precedent of such a refu-
sal; but he believed that no country could long
remain free that did furnish such a precedent.
Gentlemen say much about the secret doings of
the President. Mr. G. said he did not before know
that there were any such.
Gentlemen say, you may call for all official pa-
pers, and you ought to be satisfied with them. But
suppose your public officers expend the public
money, without keeping records of the expendi-
ture, would it not sound strange that you should
be denied the right of calling upon them for other
sources of information in their power to furnish ?
Suppose the President now called upon to say
wherefore the Berceau was repaired, would that
be improper ?
Mr. Dana. — The proposition to amend the res-
olution offered by my colleague appears to be
founded upon misapplication. The plain object
of the resolution is to ascertain the fact whether
the Berceau was repaired as an American or
French vessel. This is the proper and sole object.
As to the real intention of the Executive, I should
not suppose gentlemen would be afraid to avow
it. How can we determine this point, which must
depend on the facts for which we ask, without
first receiving them from the Executive ? In the
proceedings on the British Treaty, the case was
different. In that case the call was for informa-
tion respecting the negotiation of a treaty; this
call respects the execution of a treaty, which we
can know nothing of, but through the Executive.
The determination with which we wish to be ac-
quainted must be a Governmen^l act; as to any
secret opinion confined to the President, that could
not be contemplated by the resolution. The gen-
tleman from Massachusetts (Mr. Bacon) asks
whether the determination we wish to possess is
that of the American or French Government ? I
will answer him bysayin?*! had not imagined
that any gentleman could have supposed that the
French Government would have delivered up a
vessel itself.
For myself, I think it proper to call for this in-
formation, not that 1 would be very critical with
the Grovernment. But here is an expenditure of
$32,000. on the face of it questionable. It is proper
then to get information that will enable the people
to judge for themselves. For my own part, I have
had doubts of the propriety oi the expenditure,
either from the fund tor foreign intercourse or
from the Navy fund. I do not mean, however, to
give this as my prevailing opinion; nor would I
wish, in this stage of the debate, to implicate cen-
sure upon the Executive. If it shall appear on
inquiry, when we have all the information before
us, that the Executive has acted right in this trans-
action, I am one of those who shall de«m it c
duty to put down all the clamor that bis be*:
raised throughout the nation; aDdereDifii^k
appear that the President has acted snbstaDiii.,
right, though he may have deviated fromthestrr
letter of the law, I would wish to saDctioa L'
measures by a new law.
Mr. Griswolo. — I rise to advert to the decKs
of the House in the case of the British TraK. i
did not suppose that that case would hare ^
attempted to have been assimilated to this. T^
? [round on which the resolution then proposed n
bunded J was, that the House of Rep^ese1]tai:^
had a right to participate in the treatTHoaiis;
power ; and on that ground it was opp(^. C:
that ground too the information asked fracd;
President was refused.
[Mr. G. here quoted the Presideot'sremrbQ
reply to the resolution of the House.]
Is that the case here ? Do we claim amur
interfere by giving our assent to, or in eiec^n:
the treaty with France? No; weoolyasik
the single fact whether the repairs of tbeBerrti:
were or were not made before it was detenai:::
to deliver her to the French. We ask this, tbtii'
it shall apear there was no existing approprjci
the expenditure may be covered by anewlawt
has been the case in all instances where exp&f
have been incurred without exi sting appropnai:::
The question was then taken by yeasafr-ar.
on the amendment of Mr. Giles, and ctfr.'w-
yeas 49, nays 27, as follows:
Yeas— Willig Alston, John Bacon, Theoiro Si-
ley, Phanuel Bishop, Richard Brent, Robnt bm
William Butler, Samuel J. Cabell, Tbomis CflBeiK;
Matthew Clay, John Clopton, John Gondii htr.
Cutts, John Dawson, William Dickson, Lqcu E^'^-
dorf, Ebenezer Ehner, William Eustis, Williisit
Giles, Edwin Gray, John A. Hanna, Danid Haff
William Hoge, James Holland, David Hobo&Gess!
Jackson, John Milledge, Samuel L. MitchilL T^>^
Moore, Anthony New, Thomas Newton, jr,J««iii
Nicholson, John Randolph, jr., John SmiB*. ^
Smith, John Smith, of New York, John Smilb « ^ ^
ginia, Josiah Smith, Henry Southard, Richard Sti::^'
Joseph Stanton, jr., John Taliaferro jr., DatidTVrt
Philip R. Thompson, Abram Trigg, John Tn^.^^-
Van Cortlandt, John P. Van Ness, and Robert Wu^
Nats— James A. Bayard, Thomas Bond?-'0
Campbell, Manasseh Cutler, Samnel W. Dibs.^^
Davenport, Thomas T. Davis, John Dennis, A.-
Foster, Calvin Goddard, Roger Griswold, Jo«pk ^■
hiU, Archibald Henderson. WUliam H. Hili, ^.^
Huger, Thomas Lowndes, Lewis R. Morm, Tk'^
. Morris, Thomas Plater, Nathan Read, John CSi::^
John Stanley, John Stratton, Samuel TemKy.Gn'^
B. Upham, Killian K. Van Rensselaer, and I^
Williams.
Mr. Dana moved to suspend the resolQtii)^ f
requiring a statement of the sums paid totbe^^
cars and men of the Berceau, together vi(^^
papers relating thereto.
Mr. Giles. — The gentleman from Conn«J^
says, the precedent in the case of the British T"?
ty does not apply, as the resolution theo p^^
related to the negotiation and not totheexcc^^ *
of th& treaty; but the fact is, that resdutva^
1153
HISTORY OF CONGRESS.
1154
April, 1802.
Ft'ench Corvette Berceau.
H. OP R.
relate to the execution of a treaty, as the treaty
was already finally negotiated. Mr. G. said, he
had introduced this observation to show that there
was DO analogy whatever between the passage of
that resolution, or an agreement to this resolution
as submitted by the gentleman from Connecticut.
(Mr. Griswold.) But that resolution was pre-
cisely like this, as proposed to be altered, with one
reservation ; in the former case it was proposed
that the President should withhold all such infor-
mation as he should think improper to communi-
cate, whereas in the present case there is no such
reservation. Yet the gentleman from Connecti-
cut, (Mr. Griswolo) as appears from the yeas and
nays, was^ in the former instance, against the call.
The fact is, notwithstanding the remarks of that
gentleman, there was nothing in the resolution
agreed to by the House, in the case of the British
Treaty, that involved the claim of the House to
participate in the treaty-making power. We now
conform the present resolution to that then offer-
ed, except that we do not reserve, as we did then.
the right to the President to withhold a part ot
the papers; that is. we five to gentlemen all and
even more, than tney then denied us. The gen-
tleman from Connecticut (Mr. Griswold) on that
occasion made a handsome speech to show that
we did not possess a Constitutional right to call
for papers ; but he now tells you, that you have
not only the right to call for papers, but you have
the additional right to call on the Executive for
his purposes.
Mr. G. begged leave to know whether this
change of conduct evidenced that respect for the
Executive department which gentlemen had here-
tofore so often professed ? He also begged leave
to compare the spirit of those gentlemen, with
whom he then acted, with the spirit of other gen-
tlemen now, and to ask whether the spirit then
manifested was not a spirit of forbearance, and
one which gentlemen, on this occasion, altogether
disregarded ? Those who then voted for papers,
have since uniformly voted for papers, and now
vole for them.
The gentleman has spoken of the accommoda-
tion of the French officers of the Berceau. The
fact is, that the officers and men were, in the first
instance, placed upon the same footing ; both
were allowed two dollars a week. On tnis sum,
it was feared, the officers could not subsist. Ap-
plication was made to the Executive that the offi-
cers taken should receive a larger allowance, on
the ground that France should pay the sums al-
lowed. Mr. G. would ask wnether there was
ground for crimination here? Whether it was
improper to respect the law of nations, and to treat
the French officers as officers, under similar cir-
stances, are always treated ? And yet this con-
duct of the Executive, which, while it manifested
a respect to the law of nations, also evidenced an
equal regard to economy, had excited a great
clamor.
Mr. G. concluded by expressing a hope that the
gentlemen would get all the information pos-
sessed by the Executive, from which they will
find that the most scrupulous regard had been paid
7th Con.— 37
by the Executive to the laws, and particularly to
those that respected the expenditure of puolic
money.
Mr. Dana said he begged to observe that he had
not said that any part of the Executive conduct,
in this affair, was wrong. If the statement made
by the gentleman from Virginia was correct, he
would not hesitate to call what he had heard a
popular clamor, and would do all in his power to
put it down.
Mr. Randolph read a document, in the posses-
sion of the House, to show that tKe information,
desired by Mr. Dana, respecting the sums paid to
the officers and men of the Berceau, was already
before Congress.
Mr. Dana withdrew his motion.
Mr. Nicholson renewed it.
Mr. Griswold said he had voted against the
call for papers under the British Treaty. He
should vote for this call. He had before stated,
and he repeated it. that the ground on which that
call was made, was, that the House had a right to
participate in the treaty-making power.
The volume of the debates, which then took
place, will show that both parties considered the
call in that light. We then said, it it is your ob-
i'ect to impeach Executive officers, or to know
low much money has been expended, you have a
right to the papers i but when you ayow your ob-
ject to be an interference with the Constitutional
powers of other departments, we refuse them ; so
also said the President. But in this case we only
call for papers in relation to the sale, purchase,
and repairs of the Berceau. And have' we not a
right to inquire into the expenditure of public
money ? No one has ever doubted this right.
Mr. G. said he would, for these reasons, vote for
the present call, believing that his vote on this oc-
casion would be perfectly consistent with that
under the British Treaty.
Mr. Giles said, he denied that the House of
Representatives, in 1796, claimed a participation
in the treaty-making power.
They contended lor the rieht, a right which, he
trusted, they would never abandon, of obtaining
information whenever they were called upon to
carry a treaty into operation. The first resolution
of the House, adopted on that occasion, expressly
disavows the right to participate in the making of
treaties. [Mr. G.quoted the Journals to this effect*}
Mr. Griswold said, he was astonished at the
gentleman having read a resolution that altogether
defeated his own argument.
^Mr. Griswold here read the Journal.]
?he question was then taken by yeas and nays,
and the resolution carried by a unanimous vote.
Ordered^ That Mr. Griswold and Mr. Gilbb
be appointed a committee to present the foregoing
resolution to the President ot the United States.
Wednesday, April 7.
An engrossed bill for the relief of Thomas K.
Jones was read the third time, and passed.
The Speaker laid before the House a letter
from the Secretary of State, accompanying his
1155
H. OF R.
HISTORY OF CONGRESS.
Il5{
Northwestern Territory,
April, \^^
report on the memorial of Fulwar Skipwith, re-
ferred to him by order of the House on the nine-
teenth of January last ; which were read, and or-
dered to be committed to a Committee of the
whole House on Friday next.
Mr. John C. Smith, from the Committee of
Claims, to whom was recommitted, on the fif-
teenth ultimo, their report on the memorial of
Paul Coulon, a French citizen, made a supple-
mentary report thereon; which was read, and
ordered to be referred to a Committee of the
whole House to-day.
On motion, it was Resolved^ That a committee
be appointed to examine and report the state of
the office of the Clerk of this House.
Orderedy That Mr. Clay. Mr. Huger, and Mr.
Southard, be appointed a committee pursuant to
the said resolution.
Mr. MiTCHiLL, from the committee to whom
were referred, on the fifth instant, the amendments
proposed by the Senate to the bill, entitled " An
act for revising and amending the acts concern-
ing naturalization," reported that the committee
had had the said amendments under considera-
tion, and directed him to report to the House their
agreement to the same.
NOJITHWE8TERN TERRITORY.
The House resolved itself into a Committee of
the Whole on the bill to enable the people of the
Eastern division of the Territory Northwest of
the river Ohio to form a Constitution and State
Government, and for the admission of such State
into the Union, on an equal footing with the ori-
ginal States, and for other purposes.
Mr. Fearing moved to amend the bill so as to
embrace the population of the eastern division as
bounded by the articles of the ordinance, the effect
of which motion would be to include about thirty
thousand inhabitants of that division, that are
excluded by the provisions of the bill, and respect-
ing'whom It is provided in the bill, that they may
hereafter be added by Congress to the new State,
or disposed of otherwise, as provided by the fifth
article of the compact.
This motion gave rise to a debate of considera-
ble length, in which Messrs. Fearing, Bayard,
Griswold, Goddard, Henderson, and Ran-
dolph, supported ; and Messrs. Giles, Bacon,
and R. Williams, opposed the amendment.
Those who supported the amendment con-
tended that the exclusion of that portion of terri-
tory occupied by about three thousand inhabitants
was both unconstitutional and inexpedient. On
the ground of constitutionality, they contended,
that under the articles of the compact, which were
to be considered as the constitution of the Terri-
tory, Congress had only the right of forming the
eastern division into one, two, or three Slates;
and that under this power, no right existed to
form one part of the division into a State, and
leave the remaining sections in a Territorial condi-
tion; that the rights of the whole of the inhabi-
tants of the eastern division were equal, and if
one part was, so also muf t the remaining part be,
admitted to the privilege of a State.
On the ground of expediencf, it was contest
that the situation of the excluded inha!HUs:>
would be peculiarly bard ; that, jf attached lo ::«
Indiana Territory, they would be placed iwc r
three hundred miles from it ; that they wool: Ik
furthermore degraded from the second to thei-?
branch of Territorial governmeDt, and thatiM?
would be deprived, by the reductioD of their Bsa-
bers, from the prospect of bein^ admitted f.?i
great number of years, to State rights.
On the contrary, the opponents of the amf^'r
ment contended that the provisions of ibe :
were both Constitutional and expedient ; that .:
der the compact the right tv^s ^iren to Cogues
of admitting the eastern diyision into ihe Cakt
in the form of one, two, or three States; tiutri:
right involved a discretion to admit a part oirji
division at one time, and the remaining panri
subsequent period ; that if the whole division tt*
once admitted into the Union, Congress wosii^
prohibited from dividing hereafter, wheo ii vu
acknowledged such division woald be expe^^s^
the said division into two or more Stat^ritk.:
the consent of the State now^ formed.
That, as to considerations of expediesff. tk
hardships likely to be felt by^ the ex<Modd iitii--
tants were such as arose, not from the [^.frix:^
of the bill, but from their local sitoatioe, ci
that it was not true that they would be d^^<
by annexation to the Indiana Territory, to tki?
grade of Territorial character than they at prsn
enjoyed — the grade being the same.
Mr. Ranuolph supported the amendnie^i'^
peculiar ground, declaring that if the ameatbc
should not prevail, he would still rote for tb^ii-
mission. He declared himself in favor of ^
amendment, principally from a desire toaro^i''^^
introduction of too many small States id:: j
Union.
The question was then taken on Mr. Fzurif
amendment, and lost — yeas 34, nays 38.
Mr. Fearing moved so to amend the biLts'-'
leave to the new State the right of namicf i^
Agreed to.
After some discussion of the details of tkt *.
the Committee rose and reported the biiLir.i
amendments.
Ordered^ That the said bill, with the acit-
ments, do lie on the table.
Thursday, April 8.
Mr. John Taliaferro. Jun., from the
tee to whom was referred, on the fifth instisc *"
petition of sundry citizens of Greorg^towo. la*.
District of Columbia, with instruction to irrr
thereon by bill or otherwise, presented a V
incorporate the Directors of the Colnmboi >
brary Company; which was read t^ce^as^r^?-
mitted to a Committee of the whole Hosse .•
Monday next.
Mr. Dennis, from the committee to vhoG ▼
referred, on the fifth of February last, a moikn :.
the form of two resolutions of the House, '^
specting the adjustment of the existing dis;i:^
between the Commissioners of the City of Wtst
1157
HISTORY OF CONGRESS.
1158
April, 1802.
Northwestern Territory,
H. OF R.
ingtoD, and other persons who may conceire
themselves injured by the several alterations made
in the plan of the said city; also, relative to a
plan of the said City of Washington, conforma-
bly, as nearly as may be, to the original design
thereof, with certain exceptions," made a report
thereon ; which was read, and ordered to b& re-
ferred to a Committee of the whole House on
Monday next.
Mr. John Taliaferro, Jun., from the commit-
tee appointed, presented a bill to incorporate the
inhabitants of the City of Washington, in the
District of Columbia ; which was read twice and
committed to a Committee of the whole House
CD Monday next.
The Speaker laid before the House a letter
from the Secretary of the Treasury, enclosing a
statement prepared by the Register, of the appli-
cation of the appropriations made by Congress
for clerk-hire, in the several offices of the Trea-
snry Department, specifying the names of the per-
sons, and the salaries allowed to each, for the three
last years, in pursuance of a resolution of this
House, of the twenty-fifth uhimo ; which were
read, and ordered to lie on the table.
Tne Speaker laid before the House a letter
from the Secretary of the Treasury, accompany-
ing two statements, marked A and B, relative to
expenses incurred by the United States in the
exercise of jurisdiction over the territory of Co-
lumbia, since the assumption of jurisdiction by
Congress, prepared in pursuance of a resolution
of this House of the first instant; which were
read, and ordered to be referred to the committee
appointed, on the eighth of December last, to in-
quire whether any, and. if any, what alterations
or amendments may be necessary in the existing
government and laws of theDistrict of Columbia.
The House proceeded to consider the report of
the select committee to whom were referred, on
the fifth instant, the amendments of the Senate to
the bill, entitled ^ An act for revising and amend-
ing the acts concerning naturalization," which lay
on the table : Whereupon,
Resolved, That this House doth agree to the
said amendments, with amendments, to the section
proposed to be suostituted by the Senate in lieu of
the first and second sections of the original bill.
Mr. Nicholson, from the committee appointed
on the second instant, presented a bill to abolish
the Board of Commissioners in the City of Wash-
ington, and to make provision for the repayment
of loans made by the State of Maryland tor the
Use of the city ; which was read twice and com-
mitted to a Committee of the whole House on
Monday next.
Mr. Nicholson, from the committee appointed,
presented a bill to provide more effectually for the
due application of public money, and for the ac-
countability of persons entrusted therewith ; which
was read twice and committed to a Committee of
the whole House on Monday next.
The House, resolved itself into a Committee of
the Whole on the supplementary report of the
Committee of Claims of the seventh instant, to
whom was recommitted, on the fifteenth ultimo.
their report on the memorial of Paul Coulon, a
French citizen ; and, after some time spent therein,
the Committee rose and reported a resolution
which was twice read, and agreed to by the House,
as follows :
Resolved, That there be paid to Paul Coulon,
as agent for the captors of the ship Betty Cathcart
and brig Aaron, prizes to the French privateer La
Bellone, out of any moneys in the Treasury not
otherwise appropriated, the sum of six thousand
two hundred and forty-one dollars and forty-four
cents, being the amount retained by the Treasury
Department from the sales of the ship Betty Cath-
cart. and for duties on the carc^o of the brig Aaron.
Ordered, That a bill or bills be brought in, pur-
suant to the said resolution ; and that the Com-
mittee of Claims do prepare and bring in the same.
NORTHWESTERN TERRITORY.
The House proceeded to consider the amend-
ments reported yesterday from the Committee of
the Whole to the bill to enable the people of the
Eastern division of the Territory Northwest of
the river Ohio to form a Constitution and State
Government, and for the admission of such State
into the Union, on an equal footing with the origi-
nal States, and for other purposes, which lay on
the table; and the same being severally twice
read, were, on the question put thereupon, agreed
to by the House.
A motion was then made, further to amend the
said bill, at the Clerk's table, by striking out, in
the sixth, seventh, eighth, ninth, and t^nth lines
of the second section thereof, the following words:
'^ and on the north, by an east and west line, drawn'
through the southerly extreme of Lake Michigan,
running east, after intersecting the due north line
aforesaid, from the mouth of the Great Miami,
until it shall intersect Lake Erie or" — and insert-
ing in lieu thereof, the word '^ to :" •
it passed in the negative — yeas 27, nays 44, as
follows :
Ybas — ^James A. Bayard, Thomas Boude, Manasseh
Cutler, John Davenport, Thomas T. Davis, John Den-
nis, Ebenezer Elmer, Abiel Foster, Calvin Goddard,
Roger Griswold, William Helms, Joseph Hemphill,
Archibald Henderson, William H. HUl, Benjamin
Huger, Thomas Lowndes, Lewis R. Morris, James Mott,
Thomas Plater, Nathan Read, John Cotton Smith,
John Stanley, John Stratton, Samuel Tenney, Thomas
Tillinghast, Lemuel Williams, and Henry Woods.
Nats — Willis Alston, John Archer, John Bacon«
Theodonis Bailey, Phanuel Bishop, Richard Brent,
Robert Brown, William Butler, Samuel J. Cabell,
Thomas Claiborne, Matthew Clay, John Clopton, John
Condit, Richard Cutts, John Dawson, William Dick-
son, Lucas Elmendorf, William Eustis, John Fowler,
William B. Giles, John A. Hanna, Daniel Heister,
William Hoge, James Holland, David Holmes, George
Jackson, Charles Johnson, Samuel L. Mitchill, Thomas
Moore, Anthony New, Thomas Newton, jr., Joseph
H. Nicholson, John Smilie, Israel Smith, John Smith,
of Virginia, Samuel Smith, Richard Stanford, Joseph
SUnton, jr., John Taliaferro, jr., Philip R. I'hompaon,
Abram Trigg, John Trigg, Isaac Van Horne, and
Robert Williams.
Mr. John C. Smith moved farther to amend
1159
HISTORY OP CONGRESS.
1160
H. or R.
Norihwestem Territory,
Apbil, 1802.
the bill, by striking out the third section thereof,
in the words following, to wit :
** And be it further enacted, That all male citizens
of the United States, who shall have arrived at full age,
and resided within the said Territory at least one year
previous to the day of election, and shall have paid a
territorial or county tax, and all persons having, in
other respects, the legal qualifications to vote for Rep-
resentatives in the General Assembly of the Territory,
be, and they are hereby, authorized to choose Repre-
sentatives to form a Convention, who shall be appor-
tioned amongst the several counties within the Eastern
division aforesaid, in a ratio of one Representative to
every inhabitants of each county, according to the
enumeration taken under the authority of the United
States, as near as may be, that is to say: from the
county of Trumbull, Representatives ; from the
county of Jefferson Representatives, of the
^— — to be elected within what is now known by the
county of Belmont, taken from Jefferson and Washing-
ton counties; from the county of Washington
Representatives; from the county of Roes Repre-
sentatives, of the to be elected in what is
now known by Fairfield county, taken from Ross and
Washington counties ; from the county of Adams
Representatives ; from the county of Hamilton
Representatives, of the to be elected in what
is now known by Clermont county, taken entirely from
Hamilton county : and the elections for the Represen-
tatives aforesaid, shall take place on the second Tues-
day of October next, the time fixed by a law of the
Territory, entitled " An act to ascertain the number of
free male inhabitants of the age of twenty-one, in the
Territory of the United States Northwest of the river
Ohio, and to regulate the elections of Representatives
for the same," for electing Representatives to the Gen-
eral Assembly, and shall be held and conducted in the
same manner as is provided by the aforesaid act, ex-
cept that the qualifications of electors shall be as here-
in specified."
The motion to strike out was supported by
Messrs. John C. Smith, Goddard. Fbarino, and
Henderson, and opposed by Messrs. Qiles, Mit-
CHiLL. R. Williams, Elmer, and Holland, on
the ground that the ri^ht of the United States to
admit necessarily involved the power of prescrib-
inga convention.
The yeas and nays were taken, and it passed in
the negative — yeas 26, nays 48. as follows :
YxAS — Thomas Boude, Manasseh Cutler, Samuel
W. Dana, John Davenport, Abtel Foster, Calvin God-
dard, Roger Griswold, Seth Hastings, Joseph Hemp-
hiir, Archibald Henderson, Benjamin Huger, Thomas
Lowndes, Thomas Morris, Thomas Plater, Nathan
Read, William Shepard, John Cotton Smith, John
Stratton, Samuel Tenney, Thomas Tillinghast, George
B. Upham, Killian K. Van Rensselaer, Peleg Wads-
worth, Lemuel Williams, and Henry Woods.
Nats — Willis Alston, John Archer, John Bacon,
Phanuel Bishop, Richard Brent, William Butler, Sam-
uel J. Cabell, Thomas Claiborne, Johi\ Clopton, John
Condit, Thomas T. Davis, John Dawson, William
Dickson, Lucas Elmendorf, Ebenezer Elmer, John
Powler, William B. Giles, Edwin Gray, John A. Han-
na, Daniel Heister, William Helms, William Hoge,
James Holland, David Holmes, George Jackson, Charles
Johnson, Samuel L. Mitchill, Thomas Moore, James
Mott, Anthony New, Thomas Newton, jr., Joseph H.
Nicholson, John Smilie, Israel Smith, John Smith, of
Virginia, Josiah Smith, Samuel Smith, Henry Southard,
Richard Stanford, Joseph Stanton, jr., John Stewart,
John Taliaferro, jr., David Thomas, Philip R. Thomp-
son, Abram Trigg, John Trigg, Isaac Van Home, and
Robert Williams.
Mr. Fearing said he was of opinion that some
provision ought to be made for the inhabitants ex-
cluded from the new State, and the continuance
of suitH from the old to the new Government; for
these purposes he moved the recommitment of the
bill. Lost.
Mr. Dana proposed so to amend the fourth sec-
tion, as that a majority of the whole number of
delegates elected in the Convention, instead of a
majority of those present, should first determine
whether it be or be not expedient to form a consti-
tution, dec.
The yeas and nays were called, and the motion
carried — yeas 38, nays 33,- as follows :
YxAs — ^Thomas Boude, William Brent, John Condit,
Manasseh Cutler, Samuel W. Dana, John Davenport,
Thomas T. Davis, Lucas Elmendorf^ Ebenexer Elmer,
WilUam Eustis, Abiel Foster, John Fowler, Calvin
(joddard, Edwin Gray, Roger Griswold, John A. Han-
na, Joseph Hemphill, Ar^ibald Henderson, William
Hoge, Benjamin Huger, Lewis R. Morris, Thomas
Morris, James Mott, Thomas Plater, Nathan Read,
WilUam Shepard, John Cotton Smith, Henry South-
ard, Richard Stanford, Joseph Stanton, junior, John
Stewart, John Stratton, Samael Tenney, Thomas Til-
linghast, John Trigg, George B. Upham, Peleg Wads-
worth, and Lemuel Williams.
Nats — Willis Alston, John Archer, John Bacon,
Robert Brown, William Butler, Samuel J. Cabell,
Thomas Claiborne, Matthew Clay, John Clopton, Rich-
ard Cutts, John Dawson, William Dickson, Wiiham
B. Giles, William Helms. James HoUand, David
Holmes, Geoige Jackson, Charles Johnson, Samuel L.
Mitchill, Thomas Moore, Anthony New, Thomas New-
ton, jr., Joseph H. Nichc^son, John Smilie, Israel Smith,
John Smith, of Virginia, Samuel Smith, John Talia-
ferro, jr., David Thomas, Philip R. Thompson, Abram
Trigg, Isaac Van Home, and Robert Williams.
The bill was then ordered to be engrossed for
a third reading to-morrow.
Friday, April 9.
A message from the Senate informed the House
that the Senate have passed a bill, entitled "An
act to amend the Judicial System of the United
States;" to which they desire the concurrence of
this House.
[The chief alterations made from the old system
consist in the holding the Supreme Court only
once a year by four justices, and the establishment
of six circuits, within each district of which cir-
cuit courts are to be holden twice a year, com-
posed of one justice of the Supreme Court and the
judge of the district, in which said court is held.]
The bill was read twice, and referred to a select
committee.
The House, resolved itself into a Committee of
the Whole on the bill for the relief of Theodostos
Fowler. The Committee rose and reported the
bill without amendment.
1161
HISTORY OF CONGRESS.
1162
April, 1802.
Northwestern TTsrritory.
H.ofR,
The House then proceeded to consider the said
hill, at the Clerk's table : Whereupon, a motion
was made, and the question being put, that the
farther consideration thereof be postponed until
the third Monday in November next, it passed in
the negative.
Ordered^ That the said bill be engrossed, and
read the third time on Moaday next.
A message from the Senate informed the House
that the Senate have appointed a committee on
their part, jomtly, with such committee as may be
appointed on the part of this House, to consider
and report what business is necessary to be done
by Congress, in iheir present session, and when
it may be expedient to close the same.
The House proceeded to consider the said
message: Whereupon,
Resolved^ That this House doth agree to the
»me; and that Mr. S. Smith, Mr. Bayard, Mr.
r. Smith, (of New York,) Mr. Henderson, and
Mr. Giles, be appointed a committee on the part
>f this House for the purpose expressed in the
message from the Senate.
Mr. Randolph, from the Committee of Ways
md Means, to whom it was referj^ed to take into
;heir consideration the subject of the public debt,
ind the provisions requisite for effecting its ulti-
mate redemption, made a report thereon ; which
nras read, and ordered to be committed to a Com-
mittee of the whole House on Monday next.
Mr. Randolph, from the same committee,
>resented a bill making provision for the redemp-
:ion of the whole of the public debt of the United
States ; which was read twice and committed to
he Committee of the whole House last appointed.
Mr. J. C. Smith, from the Committee of Claims.
>resented, according to order, a bill for the relief
>f Paul Coulon ; which was read twice and com-
nitted to a Committee of the Whole House to-day.
NORTHWEST TERRITORY.
An engrossed bill to enable the people of the
Sastern Division of the Territory Northwest of
he river Ohio to form a Constitution and State
[government, and for the admission of such State
nto the Union on an equal footing with th^e origi-
nal States, and for other purposes, was read the
bird time, and the blanks therein filled up : And,
m the question that the same do pass, it was re-
el ved in the affirmative — yeas 47, nays 29, as
bllows:
Yeas — Willis Alston, John Archer, John Bacon,
rheodorus Bailey, Phanuel Bishop, Richard Brent,
iobert Brown, William Butler, Samuel J. Cabell,
rhomaa Claiborne, Matthew Clay, John Clopton, John
[/ondit, Thomas T. Davis, John Dawson, William
Dickson, Lucas Elmendorf, Ebenezer Elmer, William
Sustis, John Fowler, William B. Giles, William Hoge,
fames Holland, David Holmes, George Jackson, Samuel
a. Mitchill, Thomas Moore, James Mott, Anthony
>f ew, Thomas Newton, jr., Joseph H. Nicholson, John
!(milie, Israel Smith, John Smith, of New York, Josiah
3mith, Samuel Smith, Richard Stanford, Joseph Stan-
«n, jr., John Stewart, John Taliaferro, jr., David
Phomas, PhiUp R. Thompson, Abram Trigg, John
frigg, John r. Van Ness, Isaac Van Home, and
[Iobert Williams.
Nats — Thomas Boude, John Campbell, Manasseh
Cutler, Samuel W. Dana, John Davenport, John
Dennis, Abiel Foster, Calvin Goddard, Roger Griswold,
William Barry Grove, Seth Hastings, Joseph Hemphill,
Archibald Henderson, Benjamin Huger, Thomas
Lowndes, Lewis R. Morris, Thomas Morris, Thomaa
Plater, Nathan Read, William Shepard, John Cotton
Smith, John Stanley, John Stratton, Samuel Tenney,
Thomas Tillinghast, George B. Upham, Killian K. Van
Rensselaer, Lemuel Williams, and Henxy Woods.
Monday, April 12.
An engrossed bill for the relief of Theodosius
Fowler was read the third time, and passed.
The House went into Committee of the Whole
on the bill for the relief of Paul Coulon, which
was reported without amendment, and ordered to
be engrossed and read the third rime to day.
Mr. S. Smith, from the committee appointed,
presented a bill for the relief of Lewis Tousard ;
which was read twice and committed to the Com-
mittee of the Whole for to-morrow.
Mr. Clay, from the committee appointed on
the seventh instant, to examine and report on the
state of the office of the Clerk of this House, made
a report: which was read, and ordered to lie on
the table.
The House resolved itself into a Committee of
the Whole on the bill to provide for the establish-
ment of certain districts, and therein to amend
an act, entitled "An act to regulate the collection
of duties on imports and tonnage," and for other
purposes ; and, after some time spent therein, the
Committee rose and reported several amendments
thereto; which were severally twice read, and
agreed to by the House.
Ordered^ That the said bill, with the amend-
ments, be engrossed, and read the third time to-
morrow.
The House, resolved itself into a Committee of
the Whole on the report of the Secretary of State,
of the seventh instaut, to whom was referred, on
the nineteenth of January last, the memorial of
Fulwar Skipwith; and, after some time spent
therein, the Committee rose and reported two res-
olutions thereupon; ^which were severally twice
read, and agreed to by the House, as follow:
Resolved, That provision ought to be made by law,
for the payment of four thousand five hundred and fifty
dollars, unto Fulwar Skipwith, (which sum was advan-
ced by him to Uie United States,) with an interest of
per centum, from the first of November, one
thousand seven hundred and ninety-five.
Resolved That provision ought to be made by law
for compensating the said Fulwar Skipwith, for his ser-
vices from the first of November, one thousand seven
hundred and ninety-six, to the first of May, one thous-
and seven hundred and ninety-nine, at the rate of —
dollars, per annum.
Ordered^ That a bill or bills be brought in pur-
suant to the said resolutions; and that Mr. Daw-
son, Mr. Van Cortlandt, and Mr. Stanton, do
prepare and bring in the same.
The House, then went into Committee of the
Whole on the report of the committee of the twen-
ty-second of January, on the petition of Sarah
116S
HISTORY OF CONGRESS.
1164
H. OP R.
Sick and DUabied Seamen — United States Debt.
Apbil. 1802.
Fletcher and Jane lograham, referred to them on
the tenth of December last, and, after some time
spent therein, the Committee rose and reported
several resolutionf thereupon ; which were sev-
erally twice read,and agreed to by the House, as
follow :
Resolved, That it ii expedient to grant to the widows
and children, u the case may be, of the officers, seamen,
and marines, who were lost at sea, on board the ship
Insurgent and brigantine Pickering, lately in the service
of the United States, four months' pay of their respec-
tive husbands or fathers.
ReMolved, That it ii expedient to provide by law for
the payment of five years* half pay to the widows and
children, as the case may be, of such officers in the Na-
val service of the United States as shall be slain in
battle, or die, when in the actual line of their duty.
Resolved That the widows and children of those
officers who were lost at sea in the ship Insurgent and
brigantine Pickering, shall be entitled to this provision.
Ordered, That a bill or bills be brought in pur-
nant to the said resolutions; and that Mr. Eos-
TI8, Mr. GoDDARD, and Mr. Stanton, do prepare
and bring in the same.
An engrossed bill for the relief of Paul Coulon
was read the third time and passed.
Mr. S. Smith, from the committee appoint-
ed the ninth instant, on the part of this House,
jointly, with the committee appointed on the part
of the Senate, '^to consider and report what busi-
ness is necessary to be done by Congress in their
present session, and when it may be expedient to
close the same," made a report thereon; which
was read, and ordered to lie on the table.
The House went into Committee of the Whole
on the bill for the relief of sick and disabled
seamen.
Mr. EusTis moved to strike out the first section
which forms the moneys devoted to the above ob-
ject into a general fund, to be applied according
to the discretion of the President, instead of suf-
fering it to remain, as heretofore, applied to the
particular ports, (or those in the vicinity,) from
which the moneys are derived.
This motion was supported by Messrs. Eustis,
MiTCHiLL, and Dana, and opposed by Messrs. S.
Smith, Milubdoe, Davis, Macon, and Huger.
The question was then taken on striking out
the first section, and lost ; when the Committee
lose, and reported the bill with amendments.
Tuesday, April 13.
An engrossed bill to provide for the establish-
ment of certain districts, and therein to amend an
act, entitled "An act to regulate the collection of
duties on imports and tonnage," and for other pur-
poses, was read the third time, and, on a motion
made and seconded, ordered to oe recommitted to
a Committee of the whole House to-morrow.
Ordered, That the committee to whom was
referred, on the eleventh ultimo, a memorial of
the Illinois and Ouabache land companies, be dis-
charged from the consideration of the sanie.
Mr. Giles, from the committee to whom was
committed, on the ninth instant, the bill sent
from the Senate, entitled ^^An act to amend the
Judicial System of the United States," made a
report thereon; which was read, and, together
with the bill, ordered to be committed to a Com-
mittee of the whole House on Friday next.
Mr. Randolph, from the Committee of Ways
and Means, presented a bill making an appro-
priation for the support of the Navy of the Uni-
ted States for the year one thousand eight hun-
dred and two; which was read twice and com-
mitted to a Committee of the whole Hoase to-
morrow.
Mr. Batard, from the committee to whom was
recommitted, on the fifth instant, the bill sent from
the Senate, entitled '*An act for the better security
of public money and property in the hands of
public oflicers and agents," reported several amend-
ments thereto; which were severally twice read,
and agreed to by the House.
Ordered, That the said bill, with the amend-
ments, be read the third time to-morrow.
Mr. Dawson, from the committee appointed
yesterday, presented, according to order, a bill for
the relief of Fulwar Skipwith ; which was read
twice and committed to a Committee of the whole
House to-morrdw.
SICK AND DISABLED SEAMEN.
The House took up the bill to amend an act for
the relief of sick and disabled seamen, as reported
by the Committee of the Whole, and agreed to the
amendments with other amendments.
Mr. Bishop moved to add to the first section a
provision for applying $20,000 to the erection of a
hospital in Massachusetts.
Mr. S. Smith moved to insert in the room of
'^ $20,000, the sum of $15,000," which he consid-
ered as adequate to commencing such building.
Mr. Bishop agreed to the amendment.
This motion was supported by Messrs. Bishop,
S. Smith, Hoger, Bacon, and Eustis, and op-
posed by Messrs. Elmbndorf, Davis, Milleoge,
and Ranoolph.
Mr. MiLLEnoE moved an amendment, applying
$5,000 to the erection of a hospital in Savannah.
The proposition to appropriate $15,000 to the
erection of a hospital in Massachusetts, was agreed
to — ayes 39, noes 29.
The bill was ordered to be engrossed for a third
reading to-morrow.
UNITED STATES DEBT.
The House then went into Committee of the
Whole, on the bill providing for the payment oi
the whole debt of the United States.
Mr. Mott moved so to amend the first section
that the appropriation of $7,300,000 applied to the
annual discharge of the debt until the whole shall
be redeemed should be stricken out, and words in-
troduced making such appropriation for two years
only.
Mr. Mott said that his reasons for the motion
were that $7,300,000 was so large a proportion of
the whole revenue of the United States, that an
appropriation of that sum for any great length of
time might embarrass the operations of the Gov-
ernment. Though we are now in a state of peace.
1166
HISTORY OP CONGRESS.
1166
April, 1802.
Debt of the United States.
H. OF R.
we caoDOt promise ourselves that we shall remain
so for teD, fifteen, or twenty years. By the pro-
Yisions of this bill the Commissioners of the Sink>
ing Fund are to be entrusted with the disposition
of this large sum, and not the Legislature. He
was against reposing this extensive confidence
for so great a length of time. He knew no reason
for such a measure but the fear of trustinj^ a sub-
sequent Legislature. He was as much in favor
of a speedy extinguishment of the public debt as
any man ; but he was averse to tying the hands
of the Legislature in this way. Of the propriety
of continuing this appropriation, the Legislature
in existence two years hence, will be better judges
than we now are, as they will be better acquainted
with the situation of the country than we can
possibly be.
If we shall be involved in war. we shall be
obliged, under the provisions of this bill, to incur
new loans ; or we shall be obliged to raise addi-
tional taxes, the collection of which being neces-
sarily very slow, will not save us from the neces-
sity of making loans. To refuse to trust a sub-
sequent Legislature must be on the contemplation
that such Legislature will not be so righteous or
virtuous as ourselves; which opinion Mr. M. said
he could not entertain. For these reasons he
hoped his amendment would prevail.
Mr. Randolph. — I hope the amendment will
not be adopted, and that for the plainest reason
that can be assigned^ that its adoption will be
equivalent to the rejection of the bill. The
amendment proposes to limit the appropriation to
two years; or, in other words, to make no appro-
priation at all. For, by a reference to the report
of the Secretary of the Treasury, it will be seen
that the necessary reimbursement of the public
debt for the ensuing two years requires within
about $200,000 of the $7,300,000 proposed to be
appropriated by this bill.
The gentleman says, and I agree with him in
the opinion, that future Congresses will be as wise
as we are, and equally competent to provide for
the discharge of the public debt. Those Legisla-
tures may say the same thing of their successors,
and in this way provision will never be made.
The great question now is, whether Congress will
provide for paying the public debt, for which there
is now no adequate provision? Whether this
bill be passed or not, you must pay above $7,000,-
000. By passing it, you make no new appropri-
ation ; you only provide for paying that which
you are already pledged to pay. It is true that
you may incur new loans, or you may prolong
old ones to pay the instalments becoming due;
but I hope tne Committee will not agree to do
this. I trust that the Committee will be of opin-
ion that this is the time to take efficient measures
for the discharge of the whole debt.
The gentleman fears that the Government may
be hereafter embarrassed by this large appropri-
ation. On what are his apprehensions founded ?
Is it apprehended that the revenue beyond the
$7,300,000 will not be equal to the current expend-
iture of the Grovernment ? If such are his appre-
hensions, he ought not to hare let go the old taxes
which we have recently taken off. and he ought to
be ready to lay new ones. But have we not rea-
son to believe that the revenue will be equal to the
calls of the Government, when it is recollected
that our duties on imports amount to $9,500,000?
Instead of devotine to the payment of the debt^
the surplus above the expenditures of the Govern-
ment, it is proposed by this bill to give the Com-
missioners of the Sinking Fund a definite sum,
which shall not be affected by the expenses of the
Grovernment. Gentlemen will see, by documents
on the table, what these surplusses have been un-
der the old system. It will appear that the ex-
penditure basin many cases exceeded the receipts.
It is certainly true, that occurrences may take
place that shall call for resources beyond our total
revenue. But does it follow, that Government,
under such circumstances, will be hampered by
this provision? One million, two hundred thou-
sand dollars only is granted beyond the sum al-
ready appropriated, which may be considered as
vested in the Sinkine Fund. The expedient
therefore, of limiting tne appropriation does not
limit our resources ; and a provision is introduced
into the bill to derive from the sum of $7,300,000,
the expenses incurred under treaties, if it shall be
necessary; thus providing for a contingent defal-
cation of revenue. But if the situation of the
country shall be such as to render it necessary to
provide for a great defalcation, these provisions
will not check us — we must borrow money. What
then will be our situation ? We shall be paying
$1,200,000 with one hand, while we are borrow-
ing a large sum with the other.
The sole effect of the operation effected by this
bill, during this and the ensuing year, will be to
take a certain portion of the revenue and apply
it to the discharge of the debt, leaving the balance
to meet the expenses of the Government, instead
of first paying the expenses of the Government,
and then applying the surplus to the Sinking
Fund.
If there shall be a great emergency, will the
people have any objection to the imposition of
necessary taxes, or to the making loans ? When
I speak of a great emergency, I allude entirely to
war, as no other emergency can happen which
will require great expenditures.
Let us take a case which has already occurred.
Exclusive of the six per cent, interest which we
are bound to pay, we engaged to pay, annually,
two per cent, on the principal. Circumstances
occurred which called for greater sums than the
amount of our revenue. II then the money de-
voted to this purpose had not been vested in the
Sinking Fund, it would have been a resource for
navies and armies. We now propose to make the
same provision for the deferred and other stock.
What would have been the effect upon our stock,
if the same provision had been heretofore made,
which is now proposed by the gentleman from
New Jersey ? We miffht perhaps have had two
per cent, instead of eighteen redeemed.
A great effect of this appropriation will be to
insure an economical disbursement of the public
money, which will be sufficient for every purpose
1167
HISTORY OF CONGRESS.
1168
H. OP R.
Debt of the United States.
April, 1802*
of Govern men t. in case a great emergency does
DOt arise. And should such an emergency arise,
'Can the Committee suppose that a nation which
has taken such steps for the establishment of her
credit, will be at a loss to borrow money ? And
money you must borrow, if such an emergency
occur ; for, in case of a war, the first gun fired
will cost you more than $1,200,000, the additional
sum appropriated bv this bill. It will also be
remarked that the sole object of this bill is to pro-
vide for the redemption of the public debt, the
ensuing years after ttiis and the next year ; and if
the effects of the peace do not disable us from
complying with our engagements in. 1802 and
1803. It is clear that we shall be able to apply to
the further payment of the debt the same sum
thereafter.
I believe the Committee will have little diffi-
cultv in agreeing, that if the whole revenue that
can^e spared shall be applied to the extinguish-
ment 01 the debt, the situation of the United
States will be more advantageous, than if such
application had not been made. The national
credit must thereby be increased, which will rise
in proportion to our ability and disposition to pay.
But if^we now refuse to make a permanent, irre-
pealable provision for all the debt, which the first
Administration has wisely done in relation to a
part, then we may hereafter, at a critical period,
oe obliged to borrow at an interest, perhaps often
or twelve per cent.
I regard this bill as involving a principle more
important than any which has been adopted bv
this Qovernment, or which is likely to be adopted,
for several years. I regard the motion now made
as a death-warrant ; as it goes to deprive it of its
vital principle — that of guarding the application
of the resources of the Government to tne dimi-
nution of the debt, unleas in a great crisis. It is
true that in such a case, you cannot touch the
revenue which is now pledged ; but you can
borrow more ; and wherein consists the difference
between applying your ordinary revenue to the
discharge ot the debt, and creating by loan an
equivalent debt ; and the applying the ordinary
revenue in the first instance to the current ex-
ptnses of the Government ? The effect is pre-
cisely the same.
The question was then taken on theamendnient
of Mr. MoTT. which was lost without a division.
Mr. Griswold moved to strike out the fourth
section, which authorizes the Commissioners of
the Sinking Fund, with the approbation of the
President, to reloan any of the instalments of the
Dutch debt becoming due.
Mr. Griswold said he did not know any neces-
sity for reloaning the foreign debt. The instal-
stalment due this year amounts to above $2,000,-
000. This instalinent, we are told by the gen-
tleman from Virginia, has been already remit-
ted. The instalment due the next year amounts
to $2,347.000 ; that due on the ensuing year is short
of $2,000,000. Now we have in the Treasury
$3,000,000 of specie. Where then can be the dif-
ficulty of remitting under these circumstances ?
The bill purports to be a bill for extinguishing
the whole debt, and yet here is a provision to per-
petuate it. I hope the section will be stricken
out, apd that no further authority will be given to
extend the debt.
Mr. Randolph. — I believe the gentlemen from
Connecticut on reconsidering the reasons which
he assigned, will be averse to striking out the sec-
lion. Let us recur to the report of the Secretary
of the Treasury. He therein says :
" The inconvenience of paying the large instalments
of Dutch debt, which (all due this and the ensoing
years, is much increased by the obligation of discharg-
ing them abroad, on account both of the injury arising
from such considerable portion of the circulating capi-
tal of the United States being thus drawn abroad, and
of the difficulty and risk which attach to the purchase
of so large an amount of remittances. Although those
difficulties must be met if they cannot be obviated, it
seems proper to adopt every measure which may di-
minish them. The plan contemplated by the act of
the third March, 1795, of converting that debt into a
domestic debt, has heretofore been found impracticable,
and, from the latest advices, the event of peace abso-
lutely precludes any expectation of its being carried
into effect."
The gentleman has offered one of the strongest
reasons which could have been assigned, for re-
taining this provision of the bill, and that is, that
the instalment due on the ensuing year exceeds
$2,000,000. Wherefore object, instead of making
payment of the Dutch debt in the existing instal-
ments, (some of which are extremely burdensome,
and others as trivial) to paying it in equal instal-
ments, and to applying the difference between the
amount to be paid, and that actually mid to the ex-
tinguishment of the debt at home ? By this means
the discharge of the debt will be as rapidly going
on, and the ultimate period of payment will not
be protracted.
It is a fact that the difficulty and danger of pay-
ment abroad are much greater than at home, as
clearly appears in the case of Fulwar Skipwith.
recently before the House. In the transaction to
which that case refers, the Secretary of the Treas-
ury encountered such difficulty in obtaining remit-
tances, that he was obliged to contract for the
purchase of bullion at a loss of S4,000. This
difficulty is at present great, and it is likely to in-
crease. It is so great that the Bank of the United
States^ though highly disposed to aid the fiscal
operations of the Qovernmentand notwithstand-
ing the offer to lodge the raonev with them six
months before the payment is to be made abroad,
have formally declared they cannot undertake the
agency. Now, after the opinion of the Bank of
the United States. T which must be so much better
acquainted with tne necessary arrangements at-
tending the remittance of money, than any mem-
ber on this floor,) may I not be permitted to take
that opinion, as better authority than the gentle-
man from Connecticut? Is it not somewhat sur-
prising, that, under such circumstances, the gen-
tleman from Connecticut is opposed to giving
to the Government a facility to comply with its
engagements, not in the least degree calculated to
impair a speedy discharge of the public debt ?
1169
HISTORY OP CONGRESS.
1170
April, 1802.
Debt of the United States.
H.opR.
The gentleman says that in this bill, professing
to discharge the whole debt, there is a clause giv-
ing perpetuity to it. It is to be presumed that the
gentleman has read the bill. If so, I cannot re-
coDcile the avowal of such an opinion with the
intelligence and discernment of that gentleman.
The gentleman knows that the Dutch debt, con-
sisting of six instalments, is to be paid within six
years. He knows, too, that this provision does not
delay, but only equalizes them.
Mr. S. Smith. — I am not fully acquainted with
the contents of the bill, and when the gentleman
from Connecticut was up, I felt disposed to con-
sider this provision for a reloan as unnecessary ;
but the arguments of the gentleman from Virginia
have convinced me that it is necessary, and that
the operation may be a good fiscal operation.
The fund resulting from the re-exportation of
imported articles, will in a great measure cease
with the war; and we will of course be thrown
for reliance on the exports of our own articles.
These for the past year do not amount to more
than $33,000,000. From the fund derived from
these we will be obliged to pay the value of our
imports, and the additional sum for bills of ex-
change to the amount of these $2,000,000 of
Dutch debt. This extraordinary demand for bills
of exchange, willjprobably raise them five per cent.
There will, therefore, on the purchase of $2,000.-
000 in bills, be a charge of $10,000. The like oc-
casion for bills existing for tnree years will add
one-fiiteenth part to the whole demand. It may
therefore be good policy to vest in the Commis-
sioners, subject to the control of the President, in
case the price of bills should be injuriously high,
a power to reloan any part of these instalments.
Mr. Griswold. — I think I cannot be mistaken
in the effect of this provision in perpetuating the
debt — a provision that authorizes the Commis-
sioners of the Sinking Fund, with the approba-
tion of the President, when instalments oecome
due on the Dutch debt, to reloan them for six
years. The Commissioners, and the President
may, if they see fit, reloan the whole sum becom-
ing due this year, and so on, and thus perpetuate
the debt with new charges ; a premium in addi-
tion to the ordinary charges. The bill provides
that the interest shall not exceed five per cent.,
and the premium one per cent., so that the amount
may be six per cent, interest, which shall contiuue
for six years ; and then if you are not ready to
Fay, I suppose you must go again upon new loans,
am against such a provision, and in favor of that
which shall immediately discharge the debt as it
falls due.
Nor do I think there will be any inconvenience
attending the operation. The Secretary of the
Treasury has remitted the whole of the instal-
ment due this year. He has now in the Treas-
ury a specie balance of three millions, with which
to pay the two instalments of about two millions
each, due for the two ensuing years. Saying
there is a difficulty to remit which, with this sum
in the Treasury, is. I conceive, saying a very
strange thin^. I believe the remittance will be
perfectly safe and easy, sfftd that it can be better
made in peace than in war. The difficulty in the
case alluded to, arose altogether from the war. In
times of peace there can be no difficulty in remit-
ting. We ought, therefore, to avail ourselves of
the present period of peace; we are possessed ot
ample funds ', and though the immediate payment
of the debt may subject us to some little incon-
venience, I think it is better to submit to that,
than to postpone the payment. I know that the
millions reloaned might be applied to the reduc-
tion of the domestic debt ; but I deem it most im-
portant to extinguish the foreign debt.
For these reasons, I do say that the tendency of
this section is to perpetuate the foreign debt ; and
though, according to the provisions of this bill,
the prolongation can only be for six years, yet at
the expiration of that time some new cause may
exist for a new loan, and another provision to the
like effect be introduced.
Mr. Randolph. — With regard to the zeal of
the gentleman from Connecticut to extinguish
the debt, I suppose it is sufficiently great ; but
when that gentleman alludes to the whole sum
due this year being paid, the Committee will par-
don nte for considering the zeal and activity of
the Secretary of the Treasury as at least equal to
the zeal and activity of that gentleman. Now
the Secretary of the Treasury, who has demon-
strated his zeal by substantial acts, which have
produced a benefit to the nation, tells you that it
IS, in his opinion, necessary to equalize the Dutch
debt. The gentleman from Maryland, (Mr. S.
Smith,) whose commercial knowledge no one
will deny, tells you that in his opinion, there will be
difficulties in obtaining bills of exchange to so large
an amount as will be required to meet the exist-
ing instalments. The Secretary of the Treas-
u,ry. though he had engaged all the banks to ob-
tain the best bills, (yet from the recent failures,
some will no doubt be bad,) tells you he has ex-
perienced great difficulty in making remittance,
and infers that there exists no necessity for this
provision. He says the large sum of $2,300,000
may be remitted with facility, immediately after
the Secretary says it cannot be effected without
difficulty ; and after theBank of the United States
has determined that the difficulty and danger at-
tending the operation are so great that they will
not undertake it; and at the same time that they
offer to purchase for the Government all the efood
bills thev can obtain without a commission . Now
on which information am I, an ignorant man, un-
acquainted with mercantile arrangements, to act?
that of the Secretary of the Treasury, who has
had the experience derived from the purchase of
two millions of bills, and of the Bank of the Uni-
ted States ; or that of the gentleman from Con-
necticut, whose talents and knowledge, however,
I feel no disposition to depreciate ?
Does the gentleman wish the United States to
buy good or bad bills? If good, on what basis? Or
is nis zeal so great that he is willing to remit in
specie? I beUeve, if he stands on this ground, he
will find himself in a small minority.
The demand now made by the Secretary of the
Treasury shows by his previous conduct that it is
1171
HISTORY OP CONGRESS.
ii;:
rf. OP R.
Debt of the Untied States.
April 3:.
Dot made with the view that is dow assigned.
The man who, by his indefatigable diligence, has
procured the whole remittances of the present
year in one third of the time allowed, proves to
yoa that it is no object with him to retard the op-
erations connected with an extinguishment of the
present debt. After contemplating the great ex-
ertions made by the Secretary, and witnessing the
good that has accrued from them, I will not hesi-
tate to give credit to the report of such an officer.
That officer might undertake to remit the instal-
ments falling due; he might promise to remit them;
but he might, notwithstanding every possible ef-
fort, be unable to perform. As theretore he sees
that, after all his exertions, difficulties may exist
which he cannot surmount, like a good officer,
he recommends a legal provision for complying
with the engagements of the nation. And this is
now to be refused by gentlemen who are not ac-
quainted with the peculiar circumstances that at-
tend the making remittances to Europe. For my
Fart, I know nothing about bills of exchange; but
do know that the Secretary, from the commence-
ment of the session, has regretted the difficulty of
purchasing safe bills wherewith to make .remit-
tances.
^^The difficulties and risks," says the Secretary,
"attaching to the purchase of remittances, and
' which can only be obtained at a distance from the
' Treasury Department, and without any immedi-
* ate control or any officer of the Government, may
' not be obviated by any means."
And yet, after this information, gentlemen are
prepared to tell the Secretary of the Treasury,
who had been two years employed in making these
remittances, and who from experience ought to be
presumed to be well acquainted with circumstan-
ces, We. are better acquainted with the duties of
your station than you, and we will not grant your
request, though you are of opinion that it is re-
quired for the preservation of public credit.
Mr. Bayard. — I do not mean on this occasion
to question the eulogium, pronounced by the gen-
tleman from Virginia, on the Secretary of the
Treasury, or to say that he is not entitled to our
passive confidence ; but I mean to say, that accord-
ing to the provisions of his report, the propriety
of this provision cannot be maintained. By his
first report, it appears that, in his opinion, it was
not necessary to reloan the whole of the Dutch
debt. He says ^4he inconvenience and difficulty
* of procuring remittances to that amount, and the
' real injury arising from such heavy disbursements
' abroad, render an extension of the terms of pay-
' ment, by partial reloans, a desirable object."
He says "partial reloans" — the bill before us
authorizes a reloan of the whole Dutch debt. The
Secretary goes on — " All that seems wanted is,
\ that the gross amount of payments, which are to
' take place during the eight next years, should be
* more equally apportioned among those years."
Now, according to this report, the bill before us
is improper. But, in my opinion, it can be de-
monstrated that it is gooa policy as soon as practi-
cable to pay ofi* the whole of this foreign debt.
We are told by the Secretary that we have the
power to pa y it off. We do not know that we \..
next year have the power. Before thai tiKr
may be involved in war, and then we shall c.:>
able to pay it. Now we have the power. lu
then whether it is not now better to pay it, ly:
trust to contingencies which may prostnu ?:
public faith 1 I find that for the last year mt
the same sum was remitted as will be reqairK::
the year 1803; and what was the impression .:£
made? i do not know any great incooTecrj
that was then experienced ; nor do I kDowtbaiL
are now higher than they then were. Boi t^^
if there should be a small inconveDieoce site.
ing the discharge of this debt, I ask wbc-r
would not be proper, notwithstanding, to psic
shoulders to the wheel at this favorable perioi:'
It has been properly remarked, by thegentife::
from Connecticut, (Mr. GRiswoLD.)thattbiir-
yision may augment the debt; for we borij
loans cannot be made without additional cLlt^
We cannot therefore see from any infaroa:!
before us, that we should be able to maif i r-
loan for a lesser expense than that attaikri
remittance.
If gentlemen will look at the document! >::3f
table, they will see that the Secretary f::^
plates the extinguishment in 1809 of cea: sec-
tions of the debt, in which are iDcIaded tk ^r
ment of all the instalments of Dutch debt; cii^
system any reloan will break in.
Upon the whole, as the incODveDieDccDTf^^
entirely specious, as it is at best possible. a»i:r
probably oe altogether avoided, I think it ^'
run the risk, rather than endanger the earlj ja-
ment of the debt.
Mr. Nicholson. — We find by the report c:':;
Secretary of the Treasury an appropriatii:
$7,300,000, proposed to be annually applied la'
discharge of the whole public debt. In thesec:^-
panying documents it is stated that one i^^*
ment on the Dutch debt of $2571.692 wii. »
due in 1802 ; $2,347,038, in 1803; $1^1^'"
1804; $1,734,119 50, in 1805; and $1^-' •■
in 1806. >
Instead of pay ing off these sums astheyls?^^
due, which, it- will be observed, are varioS' i
amount, the Secretary has thought that it t;-'
be most prudent to equalize the instalments. ••
effect this object he has requested ihaiaai^'^
may be vested in the President to make panii"
loans. According to the present terms, the D*-*
debt will be entirely paid in 1809; and iti--
intended that any of the proposed reloans ji-
retard the extinguishment. lam inclined t'ji-'
this provision of the bill is not so precise tn-
effect as it ouffht to be ; as by it the newIwE *"
not necessarily reimbursable till a period bev.:
1809. I will therefore move so to amend taj
as to make all the reloans reimbursable befoK^^
iMr. N. offered a motion to this effect.]
Ir. Griswold.— I do not like that arraogfo^-
The eight per cent, stock is calculated to be f*-
off in 1809. If you carry forward to that f^
the final payment of the Dutch debt, you w.-^
cessarily prevent the payment of the cifhi f
cent, stock, from the ii^bilitv of the GorernB^
1173
HISTORY OP CONGRESS.
1174
April, 1802.
Debt of the United States,
H. opR,
at one time to pay both. It is to be considered
that the interest ofeight per cent, is war interest,
and that it will be theintere^ of the Government
to pay off the principal as soon as possible ; and
the ability to pay that stock in 1808 and 1809 will
arise principally from the smallness of the foreign
instalments.
I am also opposed to procrastinate the payment
of the Dutch debt by reloans, as they will proba-
ble cost more than any other description of debt,
perhaps equal to the eight per cent, stock, from
the premium and charges which always attend
loans. I am also opposed to this measure from the
difficulty of making remittances in time of war.
With respect to the merits of the Secretary of
the Treasury in remitting, I do not wish to de-
tract from them ; though the operation is as plain
as A, B, C. Bills are below par, there is money
enous^h in the Treasury, and all that the Secre-
tary has to do is to direct the cashiers of the banks
to buy bills. I have no doubt, the Secretary has
acted in this business with propriety, as every Se-
cretary ought to, and would act. I am sensible
too that bills may next year be above par. But
still, should this be the case, the expense will not
equal that of reloans.
As to the conduct of the banks on this occasion,
I know not how it is; but I presume it is such as the
gentleman from Virginia has stated it. They may
not make the remittance without compensation ;
but I have no doubt but that if a proper premium
is offered they will undertake it. They are like
merchants, and we must pay for these agencies
what other people pay.
Mr. Ranoolph. — The gentleman from Connec-
ticut seems to reason, as if this provision were im-
perative 'y whereas it does not declare that the in-
stalments of the Dutch debt shall not be paid in the
precise proportion of the existing instalments ; it
only vests a discretionary power, because those
who are well acquainted with the business of re-
mittance, know the difficulty attending it, and
wish to meet it by legal provisions.
It is probable that the Secretary will be obliged
to buy bills above par on England, and then buy
bills below on Holland, thus incurring a double
loss. For my part I have no objection to vesting
in the Commissioners of the Smking Fund ana
the President, this discretionary power, because I
believe the existing instalments, without a recur-
rence to relodns, will be paid, if the payment be
advantageous to the United States.
The gentleman says, if the Dutch debt is left
to 1809, we shall not be able to pay the eight per
cent, domestic debt. But, by withholding the pay-
ment of the intermediate instalments, you will be
in a situation to meet the whole Dutch debt in
1809 ; and if the price in the market of the eight
per cent, will admit it, it may be bought with the
millions spared by the postponement of the pay-
ment of the Dutcn debt.
The remarks of the gentleman respecting bills
being below par, and the facility of purchasing
them, may apply perhaps to ordinary cases, where
only small sums are required ; but when a demand
for two millions, beyond the current demand, is
superadded, will not the necessary effect be to en-
hance the price of bills ? But suppose the indivi-
duals from whom bills are generally purchased
have no right to draw beyond the ordinary de-
mand for bills, what will be the effect ? Is Gov-
ernment to be driven, no matter what .length — to
put, as the gentlemen say, their shoulders to the
wheel? In answer, I will say that the Govern-
ment have put their shoulders to the wheel, and
have manifested in their actions the most une-
quivocal disposition to pay off the debt; butj not-
withstanding this disposition, they are unwilling
to put the country to the inconveniences that may
arise from the payment of the large instalment
due in 180^— they are therefore in favor of equal-
izing it.
Besides, if every dollar that is saved from the
Dutch debt be applied to the payment of bank
loans, navy stock, or eight per cents, will there be
less debt extinguished ? Will not such applica-
tion of the public moneys promote as highly the
public interest; and have gentlemen shown that
the ultimate redemption of the debt will be pro-
longed for a moment ?
Mr. S. Smith said this section, and others that
follow, were of considerable importance ; the ef-
fects of which he had but little considered. He
therefore wished the Committee might rise, and
time be allowed for further consideration until to-
morrow. It appeared to him that the provision in
the bill would answer one good object at least.
Persons who have bills, may hold them up, and
the Secretarj^f the Treasury, having this power,
may keep down the price. If the provisions should
have no other effect, this may be a very impor-
tant one.
The Committee rose, and had leave to sit again.
Wednesday, April 14.
The bill sent from the Senate, entitled ^^An act
for .the better security of public money and prop-
erty in the hands of public officers and agents,"
together with the amendments agreed to yester-
day, was read the third time and passed.
An engrossed bill to amend an act for the re-
lief and protection of disabled seamen, was read
the third time, and passed — yeas 36, nays 33.
Previously to the passage, Mr. Elmer spoke at
some length against the bill.
Mr. Elmendorp moved the appointment of a
committee to inquire into the expediency of mak-
ing furtherregulations respecting the marine corps.
The object of this motion was to authorize tne
President to reduce the officers of the corps pro-
portionably with the reduction made of the pri-
vates, who had been reduced from one thousand
two hundred to four hundred, whereas the num-
ber of officers remained forty, though twenty were
sufficient.
In reply, it was stated by Mr. S. Smith, that
fifteen vacancies had occurred, which the President
had declined filling; that the present number of
officers was twenty-five; and when five more va-
cancies should occur, the relative proportion of
officers and privates would be attained; that it
1175
HISTORY OP CONGRESS.
IIT']
H. opR.
Debt of the United States.
APBiLlJ
was proper to leave the disposition of the corps
uader the discretion of the President, as in the
event, during the recess, of a war with the Em-
peror of Morocco, which was far from improbable,
an augmentation might be expedient.
The motion of reference was lost — yeas 29.
nays 43.
UNITED STATES DEBT.
The Hous^ again resolved itself into a Com-
mittee of the Whole on the bill making provision
for the redemption of the whole of the public debt
of the United States.
Mr. Griswolds motion, to strike out the fourth
section, being under consideration —
Mr. Randolph said : I rise to repeat the reasons
which I ur^ed yesterday against the prevalence
of this motion. I believe that every substantial
objection may be avoided by a slight amendment,
so that the power given may be to borrow in re-
lation to the instalments now due, and not again
to reloan for the new loans that may be made.
This will remove all idea respecting the effect of
this provision to perpetuate the pubuc debt. The
powers of the Commissioners of the Sinking Fund
enable them now to borrow, provided remittances
cannot be made. The power to borrow forms a
Erominent feature in all your sinking funds. They
ave also a power to sell, below par, stock created
by themselves. It is evident, therefore, that by
this provision no new powers are given \ but that,
on the contrary, old powers are Umited and re-
stricted ; nor will there be one dollar less applied
to the redemption of the public deot under this
clause than if it had never existed.
Gentlemen not acquainted with this subject
know not the difficultv of makinc^ remittances to
Holland. To meet these difficulties this section
proposes to vest discretionary powers in the Com-
missioners and the President. If struck out, it
must be from diffidence in the persons in whom
you have heretofore so liberally confided^ and
this will be in direct hostility with the prin-
ciples of the sinking fund, which confer on the
board such tremendous powers, even the power of
selling half the stock tney create below par. Is
not, then, the extent of the power given by this
section less destructive than that already vested ?
For there is now a sum of near five millions,
which it is in the power of the Commissioners to
create, and to sell half of it below par.
It does not belong to me to question the mo-
tives of the gentleman from Connecticut (Mr.
Griswold) in making this motion ; but what will
be the effect of it should it prevail? The Gov-
ernment will be either entirely unable to make
remittances to Holland, or be obliged to remit to
Holland, through England, at an expense of at
least ten per cent., or to remit the specie. What
will be the consequence? Why that same clamor
in the nation that some gentlemen would wish
now to produce. I hope that the gentleman from
Connecticut is not of this description of persons,
and that he will not be for precipitating the Gov-
ernment, by their own acts, into a situation which
shall hereafter create popular clamor.
I trust that the Committee will consider these
circumstances, and perceive that the discreiuear
powers given by tlys act to the Commisji:**:
under the direction of the President is a necev^-
power, and one, by the exercise of whicb :
public welfare cannot be hazarded. Befuf? :
year 1801, the instalments on the Dutch debt vr
trifling in amount ) as they never exceeded en
ally more than a million. Does the gf otl?-^
from Connecticut believe, or is he preparer: l i-
knowledge the former Secretary to be ioferk:'-
the present? and what will he say to the col:.- i
of the former Secretary, who "was obliged \: ".• ;
ate stock at a loss of twelve per cent.? lf,!>: j
this took place under the fornaer Secretarr. wii '
it was not required to remit more than a el. \: |
may not the difficulty be greater w^hen ih€ ii?-^
meats are more than double ? Strange k '^
the gentleman from Connecticut has ascribes v
difficulty, under the late Secretary, to tbe tu:-
ence of war, which was the very reason (ot iV -
itating remittance, owing to our extended n-r i
But when trade shall be restored to its i^^.r"
channels, the probability is, that bills lo sc ;th-
an amount on Holland^ as vrill be reqDi!*i :^-
not be purchased, and it is probable thatai'^.i'f
loss will be incurred by purchasing bilkttr.^k :
England.
Mr. Griswold. — I do not perfectly aoiff^ui.
the arguments of the gentleman from Vu'rii
He says that the Commissioners of the Sii.::
Fund have greater powers than are conftn-tJ ••
this law, and that this law is designed tc< L:l
them; and yet he says if we do not confer tv-
powers, we shall hazard the public credit I :
not understand how these two areumecis 'X
stand together. I believe that this fourth st:'^
confers greater powers than the CommU-i.:'
now possess. The gentleman says, thatunifl-
act of March 3, 1795, powers are given the Ciz
missioners commensurate to the objects ctf::-
institution. But the power given to meet tie '■>
stalments on the Dutch debt w^ls only to bcr t
when necessary. I have no objection to g.r* n.
power when the state of the Treasury reqs'Te:
I, therefore, do not propose to repeal thii ^
But that act gives no power to borrow, wb-:: -■
money wanted is in the Treasury; and. fcr -
reason, this section has been introduced. >*-
ceiving, therefore, that this section will rtt^
instead of limit, the powers of the Gommiss!:^'
I object to it.
Again, the gentleman from Virginia say*, u:
by the act of May, 1796, which gave author.n -
borrow five millions, the Commissioners :1
more extensive power, and that that povrer 5
exists. If it does exist, the section is not n
culated to abridge it, for this law expres&T ' --
tinues it. But I think that act does not gir«t.
present power lo borrow the sum therein'arJ^
ized. [Here Mr. G. quoted the act.] Njt
appears that the authority to borrow five mu.
was in order to pay the debt due to the B»ii
the United States, branch bank of New T*
and the instalment of the Dutch debt doe :»
year. That year is passed ; the debts thea :
are paid, and of course the power is go&e r.
I
1177
HISTORY OF CONGRESS-
1178
April, 1802.
Debt of the United States.
HfopR,
the occasion for which it was created ; the law
was only passed to enable the Commissioners of
the SinkiDg Fund to meet the pressing demands
of that year. Those demands have been satis-
fied, and the power consequently ceases. The
power given by the law of 1795 is all that is ne-
cessary; and under that power it never was con-
templated that the Commissioners should borrow
when there was money sufficient in the Treasury.
For these reasons I do not think we ought to en-
large the powers of the Commissioners. Nor do
I believe that there will be any difficulty in mak-
ing remittance for 1803. There is no prospect
that bills on Europe will be under par i the pros-
pect is that they will rise. In consequence of the
^reat price of our produce, we have had a great
mflux of cash, by which we have been enabled
to pay off a great proportion of debt due in Eu-
rope, and there is less amount of debt due now
than at any former period since the war. We
shall not probably run in debt as formerly, and
bills will rise; our credits in Europe will extend,
with which the demand for bills will increase;
they will of course rise, and in two or three years
we shall be obliged to give more for them than
now. This, therefore, is the time to make remit-
tance for 1803. Why we should be exposed to
the postponement of this payment, when it can
now be made on better terms than nereafter, is to
me unintelligible. If we do not do this, the effect
will be to perpetuate the debt.
It does not appear to me clear, that under this
section, the Commissioners may not reloan after
the six years during which the present instalments
are due ; and, in this way, the debt may be per-
petuated to the end of time. I, therefore, am de-
cidedly- of opinion, that it is best to go on in the
old way, until some embarrassment shall occur,
which we shall be in time to provide for at the
next session of Congress.
I have no objection to repose, with the gentle-
man from Virginia, implicit confidence in the
Executive. But I never have thought that it was
a sufficient argument for the adoption of any meas-
ure, to say that it had been recommended by a
Secretary of the Treasury. I have always thought
that we ought to judge for ourselves; and, so
judging, I think we must conclude that this pro-
vision is unnecessary.
Mr. Randolph. — I am sorry to be so unintelli-
gible to the gentleman from Connecticut; but
when the laws of the United States are so unin-
telligible to that gentleman — those laws which are
doubtless drawn with perspicuity, and some of
them drawn by himself — how can an individual
member expect to be understood ? The gentleman
says the Commissioners have no power to borrow
money for the payment of the instalments of
Dutch debt under the act of May, 1796. Now. I
am willing to test everything I have said by tne
accuracy of the construction which I have put on
that law. I wish the Committee to attend to the
act, and to see what reliance ought to be placed
on the facts or deductions of that gentleman.
The act says :
" That it shall be lawful for the Commissioners
^ of the Sinking Fund, with the approbation of
' the President of the United States, to borrow, or
' cause to be borrowed, on the credit of the United
*' States, any sum not exceeding five millions of
^ dollars, to be applied to the payment of the capi-
^ tal or principal, of any parts of the debt of the
' United States now due, or to become due. durine
' the course of the present year, to the Bank oT
* the United Stated or to the Bankot New York,"
**or for any instalments of foreign debt." And
yet the gentleman gravely says, that this law only
applies to one year. Now, let me ask, is the sum
due abroad in 1802 an instalment of foreign debt,
or is it not? The words "now due, or to become
due," clearly refer to this foreign debt, and the
term "any instalment," refers to future instal-
ments becoming due.
The gentleman further says that this section
gives powers in addition to those already pos-
sessed by the Commissioners. It is true that they
are in audition, but it is also true that they are in
qualification of those powers. If the debt pro-
vided for were a domestic debt, there would not
be a shadow of difference. This provision will
not prevent the Commissioners from buying good
bills; but it will provide for the contingency of
your having abundance of money here, and but
little whereon to draw in Holland. Your en-
gagements must be complied with. Now, is it
best that, in order to provide for such an emer-
gency, the Commissioners should have the power
granted in this section, which will not prolong the
nal payment of the debt, or that they should be
obliged to exercise the power of creating stock
not redeemable till 1819, which will be the case
with stock created under the act of May, 1796?
The gentleman further says, that this provision
will perpetuate the debt. But a simple amend-
ment to inhibit reloans, additional to those con-
templated to be authorized by this bill, will pre-
vent this. But we are charged with the strange
and novel doctrine of confidence in the Execu-
tive. And what does this charge arise from?
An officer, who has remitted two millions nine
months before it was due, a gentleman whose fis-
cal knowledge the gentleman from Connecticut
might have availed himself of, is not to be con-
fided in ; while the mere ipsi dixit of the gentle-
man from Connecticut is to be confided in ! Upoa
my soul, while I admire the ingenuity, I cannot
admire the modesty of the gentleman !
The gentleman says, it is time enough to meet
embarrassments when they occur ; but I will tell
him it is our business to prevent them from occur-
ring; and, I believe, the gentleman from Connecti-
cut has not given evidences of greater knowledge
on this subject than the Secretary of the Treasury,
or the Bank of the United Stales, or the best in-
formed merchants. For my part, I do not pretend
to mercantile knowledge. I am ready to grant
that the mercantile knowledge of that gentleman
is much greater than mine. I do confess, that on
such subjects, I have always relied upon ihe Sec-
retary of the Treasury, the banks, or the best in-
formed merchants. But, while I allow the supe-
rior mercantile information of the gentleman, I
1179
HISTORY OF CONGRESS.
1180
H. OP R.
Debt of the United Stales.
April, 1802<
doubt the accuracy of the sources from which it
is drawn, the more especially as I do not find it
supported by the information of mercantile men
from the seaports, and from other respectable
sources.
The question was then taken on striking out
the fourth section, and lost — ayes 21, noes 41.
Mr. Nicholson moved, and Mr. Randolph
seconded, an amendment limiting the power of
the Commissioners to the reloan of the instalments
of Dutch debt becoming due in 1803, 1804, 1805,
and 1806.
Mr. Nicholson said he offered this amendment
to meet the ideas of gentlemen who considered
the original provisions of the bill as vesting a
power that might be exercised to the prolongation
of the ultimate payment of the Dutcn debt.
The amendment was agreed to without a
division.
The sixth section, beipg under consideration, is
as follows:
" And be it further enacted, That the CommiBsion-
en of the Sinking Fund be, and they hereby are, em-
powered, with the approbation of the President of the
United States, to employ, if they shall deem it neces-
sary, an agent in Europe, for the purpose of transact-
ing any business relative to the discharge of the Dutch
debt, and to the loan authorized by this or any other
act, for the purpose of discharging the same ; and also
to allow him a compensation not exceeding three thou-
sand dollars a year, to be paid out of any moneys in
the Treasury not otherwise appropriated."
Mr. Gr IS WOLD said he did not see the necessity
of an agent in Europe. The business had hereto-
fore been well done by bankers. If an individual
be sent, he may not be perfectly responsible in
fortune or character. Mr. G. concluded by mov-
ing to strike out the sixth section.
Mr. Randolph. — In answer to the c^entleman I
will read an extract from the report of the Secre-
tary of the Treasury. He says : " For this pur-
' pose it would be necessary to give an express
' authority to the Commissioners of the SinRing
' Fund ; and. in order to enable them to transact
' in the most advantageous manner, both that and
^ any other business relative to that debt, it would
' be eligible to give them a power, if they shall
' find it necessary, to employ a special agent in
' Holland. The usefulness of that arrangement
' had been some years ago suggested by this de-
'partment; and its^ necessity is now much in-
' creased by the increased extent of the payments
' and transactions in Holland relative thereto."
By this section no reflection is inteuded on the
agents heretofore employed ; their abilities have
never been questioned. But it will be recollected
that these agencies may be required in England,
as the stock is generally lower in the Seven Prov-
inces than in England. I should have expected
that the appointment of a responsible agent would
have been the last thing objected to. It is not
Eroposed to make him our cashier, but to place
im under the direction of the Secretary of the
Treasury, to do whatever the interests of the
United States require in relation to the debt. This,
too, is a power, which is only to be exercised
when the Commissioners of the Sinking Fund
shall think it necessary. Now, is it not strange
to deny a power of appointing an agent at an ex-
pense not exceeding three thousand dollars, where
you already have given the power of disposing of
millions ?
Mr. Griswold. — I do not know whether the
Commissioners will not have the power of appoint-
ing aj^ents without thb provision ; but I am afraid
that It may be intended, in this formal way, to
transfer the payment of the debt from the bankers
to this agent. I would, therefore, rather leave the
business where it now is, to be exercised under
the responsibility of the Commissioners of the
Sinking Fund.
The question was then taken on striking out
the sixth section, and lost — ayes 30. noes 38.
Mr. Gbiswold. — If the object ot the fifth sec-
tion is only to get the bank to remit to Holland, I
presume gentlemen will have no objection to strike
out the words, "or individuals."
[Those words, in connexion, stand thus : " The
* Conimissioners are empowered to contract,
^ either with the Bank of the United States, or
' with any other public institution, or with indi-
' viduals, for the payment in Holland of the whole,
* or any part of the Dutch debt.'']
This power, said Mr. G., is very extensive.
Nine millions are due in Holland, for the py-
ment of which the Commissioners may make a
contract with an individual, and, if he fail, the
public may be obliged to pay the whole over again,
and thus endangef the public property. I, there-
fore, move to strike out the words, " or with indi-
viduals."
Mr. Randolph said he did not say that the
sole object of the section was to enable the Com-
missioners to contract with the bank, though he
presumed the Commissioners would prefer con-
tracting with the bank. The gentleman surely
did not mean it as a serious argument in favor (k
his motion, that the individual contracted with
will run off'and endanger the Dublic property; as
he knows that, at present, the Commissioners buf
bills from individuals, and if they fail, the public
loses. It is obvious, therefore, that this section
increases the security of the Government.
Mr. Griswold. — I have always thought it a
bad mode of paying debts through contractors.
I know that Government purchase^ bills from in-
dividuals, but I know that the amounts purchased
are small, and, therefore, the loss inconsiderable
that arises from the failure of an individual; bat
if you contract with individuals for the whole, if
you lose at all, you will lose to an enormous
amount. I believe Government will act right;
but several things are said; it is said the French
Government would wish to contract for the pay-
ment of the Dutch debt, and that we would ad-
vance the money to them here. I believe that
that would be a very bad bargain.
Mr. Bacon thought this power very difiereat
from that of buying biUs. It must be a very im-
portant individual who shall be equal to the pay-
ment of this debt, and equal to securing the Uni-
ted States in any contract he may make with
1181
April, 1802.
HISTORY OF CONGRESS.
1182
Debt of the United States.
H/opR.
them. Mr. B. said that this was his opiaion,
though he might be mistaken.
Mr. Randolph. — The geDtlemaa is mistaken.
This pruvisioQ gives no power to the Commis-
sioners to contract with an individual. They
may negotiate with* a number of individuals, in
proportion to the number of whom the security is
enhanced.
Mr. Bayard moved to strike out all that part
of the section (including the words to be stricken
out by Mr. Griswold) which authorizes the Com-
missioners to contract for the payment of the
Datch debt. He said he saw neither the neces-
sitv or utility of this provision for paying^ the
debt, which must be made with individusHs, or
with bodies corporate. He wished to know why
the Commissioners could not pay it themselves?
He wished to know if the provision would have
any other effect than to augment the sum paid ;
in fact to create two debts; for, by incurring the
last, you do not expunge the first. By this sec-
tion there is no limitation. The Commissioners
may contract with individuals to pay the whole
nine millions.
Mr. Randolph. — I will ask one simple ques-
tion. At whose risk are the payments now made ?
By whom are they now paid ? It is very easy for
one man to pay a debt to his neighbor ; but if he
has to make payment in Europe or India, it must
be by others. There will, of course, be a risk ;
and even if he insures, he does not insure the sol-
vency of the insurer. Does the gentleman mean
to say that the actual payment of the foreign
debt is not worth more than the nominal amount
of ^? If so, wfiy have Congress offered to for-
eign creditors a transmutation of their demands
into a domestic debt, with one-half per cent, in-
crease? The French creditors availed themselves
of the offer ; but the Dutch creditors would not,
and the whole present inconvenience arises from
this refusal. You are now obliged to make pay-
ment in Holland, and yet the gentleman says such
pay is worth nothing. What is this provision
DQt saying that, instead of relying on the indi-
vidual drawers of bills, we prefer to rely on the
banks, or on a number of individuals?
The question was taken on Mr. Bayard's mo-
tion to strike out. and lost — ayes 28, noes 42.
When Mr. Uriswold's motion recurred to
strikeout, '^o^with individuals;" which was lost.
Mr. Batard then moved the following amend-
ment : " Provided the United States shall not pay
' more than the nominal amount of the debt, and
* the expenses thereon authorized by this act."
Mr. Bayard. — My object now is very different
from that which I had in the motion I previously
made. Under this power the Commissioners may
contract to pay twelve or fifteen millions instead
of nine millions of dollars. I am not opposed to
a liberal confidence in the Executive; but I am
more disposed to trust our laws, to rely on our-
selves, and we are surely unworthy of legislating
when we cease to pursue our own judgments. I
have no other view in this motion than to say
that my sole object is to prevent the payment of
more than the nominal amount of this aebt. In
this amendment I have designated the expenses
authorized by this law beyond the principal and
interest. Now, I call upon gentlemen, it there
are any proper expenses not designated, to desig-
nate them. Let them do this, and then we shall
be acting upon ground that we understand. Do
gentlemen want greater power than this? As
the matter now stands, you may not only pay the
principal and interest of the foreign debt, but a
profitable job may be made of it. I do not mean
to insinuate that any such thin^ is intended ; but
I do not see the propriety of giving more power
than is necessary. I hope, therefore, that this
amendment will prevail, and that' we shall not
give the unlimited power contained in the bill.
Mr. Randolph. — I am sorry to be so trouble-
some to the Committee, but I deem it necessary
to defend the bill against the objections of gentle-
men who do not seem to understand it: The gen-
tleman asks what risk^are to be avoided by this
provision ? I will answer him ; that very risk of
making remittances, which has cost so much, and
for getting rid of wnich half of one per cent, has
been offered to be sacrificed. If tne Commis-
sioners, according to the gentleman from Dela-
ware, wish to make a lucrative job, what have
they to do but to give more than the value of
bills? Is not the discretion given by the bill
necessarily involved in the nature of the institu-
tion ? They may now sell one-half the stock they
issue for one cent in the dollar; and, by collusion,
they may buy bad bills. These are the powers
they now possess. It is evident, therefore, that
the whole objection is futile.
Mr. Griswold. — The object of the amendment
is to limit the profit allowed to contractors. I do
not see why we ought not to limit it. If the gen-^
tleman is disposed to allow a profit, let it "be lim-
ited, and let them not grasp at too much. I do
not believe it will be in the power of the bank, or
of individuals, to make remittance better than
the Government itself. I aver that this has been
done under as good terms by the Government as
it can be done by individuals. This has been the
case heretofore, and it will undoubtedly continue
to be the case.
Mr. Bayard. — ^Mv object simply is to act on
this subject as on all others. We are bound to
our constituents to know the expenses attending
this business before we allow them. Now fcall
upon gentlemen to say whether they are ready to
pay, not only the amount of the debt, but all ex-
penses, no matter however great, which may be
incurred ? We are told by the gentleman from
Virginia, that we have given almost unlimited
discretion to the Commissioners of the Sinking
Fund, and the inference he draws from this fact
is, that we should now take away all limits to dis-
cretion. We go on a different principle ; we are
willing to delegate all necessary powers; the
power, for example, of purchasing bills ; but we
are not willing to convert a debt of nine millions
into one of fifteen millions. Are gentlemen, in
short, prepared to authorize expenses they know
nothing about ? This is a new doctrine^ and par-
ticularly from gentlemen on the other side.
1179
HISTORY OF CONGRESS.
1180
H. OP R.
Debt of the United Stales,
ApriLi 1802.
doubt the accuracy of the sources from which it
is drawn, the more especially as I do not find it
supported by the information of mercantile men
from the seaports, and from other respectable
sources.
The question was then taken on striking out
the fourth section, and lost — ^ayes 21, noes 41.
Mr. Nicholson moved, and Mr. Randolph
seconded, an amendment limiting the power of
the Commissioners to the reloan of the instalments
of Dutch debt becoming due in 1803, 1804, 1805,
and 1806.
Mr. Nicholson said he offered this amendment
to meet the ideas of gentlemen who considered
the original provisions of the bill as vesting a
power that might be exercised to the prolongation
of the ultimate payment of the Dutcn debt.
The amendment was agreed to without a
division.
The sixth section, beipg under consideration, is
as follows:
" And be it further enacted, Tliat the CommiMion-
eis of the Sinking Fund be, and they hereby are, em-
powered, with the approbation of the President of the
United States, to employ, if they shall deem it neces-
sary, an agent in Europe, for the purpose of transact-
ing any business relative to the discharge of the Dutch
debt, and to the loan authorized by this or any other
act, for the purpose of discharging the same ; and also
to allow him a compensation not exceeding three thou-
sand dollars a year, to be paid out of any moneys in
the Treasury not otherwise appropriated."
Mr. Griswold said he did not see the necessity
of an agent in Europe. The business had hereto-
fore been well done by banker^i. If an individual
be sent, he may not be perfectly responsible in
fortune or character. Mr. G. concluded by mov-
ing to strike out the sixth section.
Mr. Randolph. — In answer to the fifentleman I
will read an extract from the report of the Secre-
tary of the Treasury. He says : " For this pur-
' pose it would be necessary to give an express
' authority to the Commissioners of the SinRing
' Fund; and. in order to enable them to transact
' in the most advantageous manner, both that and
' any other business relative to that debt, it would
* be eligible to give them a power, if they shall
' find it necessary, to employ a special agent in
* Holland. The usefulness of that arrangement'
' had been some years ago suggested by this de-
'partment; and its^ necessity is now much in-
' creased by the increased extent of the payments
' and transactions in Holland relative thereto."
By this section no reflection is intended on the
agents heretofore employed; their abilities have
never been questioned. But it will be recollected
that these agencies may be required in England,
as the stockis generally lower in the Seven Prov-
inces than in England. I should have expected
that the appointment of a responsible agent would
have been the last thing objected to. It is not
proposed to make him our cashier, but to place
nim under the direction of the Secretary of the
Treasury, to do whatever the interests of the
United States require in relation to the debt. This.
too, is a power, which is only to be exercised
when the Commissioners of the Sinking Fund
shall think it necessary. Now, is it not strange
to deny a power of appointing an agent at an ex-
pense not exceeding three thousand dollars, where
you already have given the power of disposing of
millions ?
Mr. Griswold. — I do not know whether the
Commissioners will not have the power of appoint-
ing agents without this provision ; but I am afraid
that it may be intended, in this formal way, to
transfer the payment of the debt from the bankers
to this agent. I would, therefore, rather leave the
business where it now is, to be exercised under
the responsibility of the Commissioners of the
Sinking Fund.
The question was then taken on striking out
the sixth section, and lost — ayes 30. noes 38.
Mr. Griswold. — If the object or the fifth sec-
tion is only to get the bank to remit to Holland, I
presume gentlemen will have no objection to strike
out the words, ^'or individuals."
[Those words, in connexion, stand thas : " The
^ Commissioners are empowered to contract,
^ either with the Bank of the United States, or
^ with any other public institution, or with indi-
^ viduals, for the payment in Holland of the whole,
* or any part of the Dutch debt."]
This power, said Mr. G., is very extensiveL
Nine millions are due in Holland, for the pay-
ment of which the Commissioners may make a
contract with an individual, and, if he fail, the
public may hie obliged to pay the whole over a^ain,
and thus endangefthe public property. I, there-
fore, move to strike out the words, "or with indi-
viduals."
Mr. Randolph said he did not say that the
sole object of the section was to enable the Com-
missioners to contract with the bank, though he
presumed the Commissioners would prefer con-
tracting with the bank. The gentleman surely
did not mean it as a serious argument in favor of
his motion, that the individual contracted with
will run ofif and endanger the public property ; as
he knows that, at present, the Commissioners buy
bills from individuals, and if they fail, the public
loses. It is obvious, therefore, that this section
increases the security of the Grovernment.
Mr. Griswold. — I have always thought it a
bad mode of paying debts through contractors.
I know that Government purchase| bills from in-
dividuals, but I know that the amounts purchased
are small, and, therefore, the loss inconsiderable
that arises from the failure of an individual; but
if you contract with individuals for the whole, if
you lose at all, you will lose to an enormous
amount. I believe Government will act right;
but several things are said; it is said the French
Government would wish to contract for the pay-
ment of the Dutch debt, and that we would ad-
vance the money to them here. I believe that
that would be a very bad bargain.
Mr. Bacon thought this power very difiereni
from that of buying biHs. It must be a very im-
portant individual who shall be equal to the pay-
ment of this debt, and equal to securing the Uni-
ted States in any contract he may make with
1181
HISTORY OP CONGRESS.
1182
April, 1802.
Debt of the United States,
H/opR.
them. Mr. B. said that this was his opiDion,
though he might be mistaken.
Mr. Randolph. — The gentleman is mistaken.
This provision gives no power to the Commis-
sioners to contract with an individual. They
may negotiate with* a number of individuals, in
proportion to the number of whom the security is
enhanced.
Mr. Bayard moved to strike out all that part
of the section (including the words to be stricken
out by Mr. Qriswold) which authorizes the Com-
missioners to contract for the payment of the
Dutch debt. He said he saw neither the neces-
sity or utility of this provision for paying^ the
debt, which must be made with individuals, or
with bodies corporate. He wished to know why
the Commissioners could not pay it themselves?
He wished to know if the provision would have
any other effect than to augment the sum paid ;
in fact to create two debts; for, by incurring the
last, you do not expunge the first. By this sec-
tion there is no limitation. The Commissioners
may contract with individuals to pay the whole
nine millions.
Mr. Randolph. — I will ask one simple ques-
tion. At whose risk are the payments now made ?
By whom are they now paid ? It is very easy for
one man to pay a debt to his neighbor ; but if he
has to make payment in Europe or India, it must
be by others. There will, of course, be a risk ;
and even if he insures, he does not insure the sol-
vency of the insurer. Does the gentleman mean
to say that the actual payment of the foreign
debt is not worth more than the nominal amount
of 4it? If so, wRy have Congress offered to for-
eign creditors a transmutation of their demands
into a domestic debt, with one-half per cent. in-
crease? The French creditors availed themselves
of the offer ; but the Dutch creditors would not,
and the whole present inconvenience arises from
this refusal. You are now obliged to make pay-
ment in Holland, and yet the gentleman says such
gay is worth nothing. What is this provision
ut saying that, instead of relying on the indi-
vidual drawers of bills, we prefer to rely on the
banks, or on a number of individuals ?
The question was taken on Mr. Bayard's mo-
tion to strike out. and lost — ^ayes 28, noes 42.
When Mr. Uriswold's motion recurred to
strikeout, '^o^with individuals;" which was lost.
Mr. Bayard then moved the following amend-
ment : ^' Provided the United States shall not pay
' more than the nominal amount of the debt, and
' the expenses thereon authorized by this act."
Mr. Bayard. — My object now is very different
from that which I had in the motion I previously
made. Under this power the Commissioners may
contract to pay twelve or fifteen millions instead
of nine millions of dollars. I am not opposed to
a liberal confidence in the Executive; but I am
more disposed to trust our laws, to rely on our-
selves, and we are surely unworthy of legislating
when we cease to pursue our own judgments. I
have no other view in this motion than to say
that my sole object is to prevent the payment of
more than the nominal amount of this debt. In
this amendment I have designated the expenses
authorized by this law beyond the principal and
interest. Now, I call upon gentlemen, if there
are any proper expenses not designated, to desis-
nate them. Let them do this, and then we shall
be acting upon ground that we understand. Do
gentlemen want greater power than this? As
the matter now stands, you may not only pay the
principal and interest of the foreign debt, but a
profitable job may be made of it. I do not mean
to insinuate that any such thin^ is intended ; but
I do not see the propriety of giving more power
than is necessary. I hope, therefore, that this
amendment will prevail, and that' we shall not
give the unlimited power contained in the bill.
Mr. Randolph. — I am sorry to be so trouble-
some to the Committee, but I deem it necessary
to defend the bill against the objections of gentle-
men who do not seem to understand it'. The gen-
tleman asks what risk^are to be avoided by this
provision ? I will answer him ; that very risk of
making remittances, which has cost so much, and
for getting rid of wnich half of one per cent, has
been offered to be sacrificed. If tne Commis*-
sioners, according to the gentleman from Dela- .
ware, wish to make a lucrative job, what have
they to do but to give more than the value of
bills? Is not the discretion given by the bill
necessarily involved in the nature of the institu-
tion ? They may now sell one-half the stock they
issue for one cent in the dollar; and, by collusion,
they may buy bad bills. These are the powers
they now possess. It is evident, therefore, that
the whole objection is futile.
Mr. Gribwold. — The object of the amendment
is to limit the profit allowed to contractors. I do
not see why we ought not to limit it. If the gen-^
tleman is disposed to allow a profit, let it'be lim-
ited, and let them not grasp at too much. I do
not believe it will be in the power of the bank, or
of individuals, to make remittance better than
the Oovernment itself. I aver that this has been
done under as eood terms by the Government as
it can be done by individuals. This has been the
case heretofore, and it will undoubtedly continue
to be the case.
Mr. Bayard. — My object simply is to act on
this subject as on all others. We are bound to
our constituents to know the expenses attending
this business before we allow them. Now fcail
upon gentlemen to say whether they are ready to
pay, not only the amount of the debt, but all ex-
penses, no matter however great, which may be
incurred ? We are told by the gentleman from
Virginia, that we have given almost unlimited
discretion to the Commissioners of the Sinking
Fund, and the inference he draws from this fact
is. that we should now take away all limits to dis-
cretion. We go on a different principle ; we are
willing to delegate all necessary powers ; the
power, for example, of purchasing bills ; but we
are not willing to convert a debt of nine millions
into one of fifteen millions. Are gentlemen, in
short, prepared to authorize expenses they know
nothinfir about ? This is a new doctrine^ and par-
ticularly from gentlemen on the other side.
1183
HISTORY OF CONGRESS.
1184
H. OF R.
Debt of the United StcUes.
April, 1802
The question was then taken on Mr. Bayarb's
amendment, and lost — yeas 23, nays 42.
Mr. B. then moved so to amend the fourth sec-
tion, by striking out certain words, as to prevent
the bill from empowering the Commissioners of
the Sinking Fund to borrow under the law of
May, 1796, under a construction, which he con-
tended the bill gave, that that act was in force.
As soon as the year in which that act was passed
was over, those debts were paid, and the act
ceased; a Legislative construction that that act
is still in force, may perhaps justify the Executive
ih considering it so. Suppose it is in force, there
will be nothing in this act to repeal it. If the
object is not, by a side-wind, to authorize the bor-
rowing of five millions, under the idea that this
act is still in force, gentlemen will have no objec-
tion to this amendment. This I affirm can be the
only effect of the present provision. If gentlemen
have this object let them^vow it. I am, indeed,
greatly surprised at these provisions in this bill.
Its title is very splendid ana promising ; but when
we come to the billj we find it contains an author-
ity to loan nine millions abroad, and to borrow
five millions at home; and in this way gentlemen
mean to extinguish the debt. I, therefore, do hope,
that if it is not the intention of gentlemen indi-
rectly to revive this loan, authorizing the borrow-
ing of five millions, they will agree to my amend-
ment.
Mr. RANnoLPH. — If the gentleman from Dela-
ware can prove to me that the act of May, 1796,
has expired, I should be the first to second his
motion. But I am convinced that it has not, and
cannot, so long as any instalment of foreign debt
remains due. These are the terms of the act,
which fix its duration. For my part I should be
pleased to have it proved that it is not in force,
and that there was no such power vested in the
sinking fund, to create stock, as therein author-
ized, in any circumstances.
When the Committee draughted this bill, it be-
came them to provide, that all the powers already
vested in the Commissioners of the Sinking Fund
should not be invalidated. Suppose, in this bill,
such a provision should have been omitted, we would
have been then told, that the public faith was en-
dangered ; that there was no telling what mifi^ht
happen in two or three years; and that, if this
power were taken awav, the Commissioners might
be disabled from complying with the engagements
of the Gbvernment with the public creditors. We
should have heard of injuries inflicted on public
credit, and of violation of the public faith ! This
provision has in truth no other effect than that of
leaving thinjo^s exactly where they are, and telling
the courts that this present act shall not affect a
previous law. This act, therefore, really does
nothing. It is clear, however, to me, that the
provision of the act of May, 1796. is still in force,
and that you can only get rid of it in two ways,
either by paying off all the instalments of foreign
debt, or by the Commissioners' borrowing to the
extent of the five millions.
The gentleman says, that while we profess to
pay the public debt, we are calling, by side-winds,
for the power td borrow five millions. We say
no such thing; we only say that the authorities
of the sinking fund, heretofore given by law. shall
not be affected by this bill. When we want loans,
we will call for them directly. We trust thai
none of the provisions of the act of May, 1796.
will be necessary, and that we shall not be obligea
to create stock irredeemable till the year 1819, or
to sell half the stock created at any market value
below par. If the gentleman had examined at-
tentively this proviso, he would have found it to
be a thing of course, and copied almost verbatim
from former acts.
Mr. Griswold. — It is admitted that no part of
this bill goes to repeal the act of May, 1796; that
act, therefore^ cannot be affected by this. I ask,
then, why this section is introduced? Can it be
introduced for no other purpose than to give the
consent of the Legislature to the existence of that
law ? Is it proper to sire a Legislative sanction
to the continuance of tne act of May, 1796? The
gentleman from Virginia says, he would wish to
see this power out of existence. Why, then, not
leave it where it is? That the power nas expired
is evident from the words. They are: '^ That the
Commissioners may borrow any sum not exceed-
ing five millions of dollars, to be applied to the
payment of the capital, or principal, of any parts
of the (tebt of the United States, now due. during
the course of the present year, to the Bank of the
United States, or to the Bank of New York, or
for any instalment of foreign debt."
The plain meaning of these words is, that the
Commissioners may borrow, for any part of the
debt now due, to or become due daring the current
year, first to the Bank of the United States, fec-
ondiy to the Bank of New York, and^ lastly, for
any instalment of foreign debt. This is the plain
meaning of the statute, and this must be the con-
struction put upon it, for the authority to borrow
is expressly confined to that year. It was not
contemplated at the passage of the act that the
power should be continued heyond the year. Tde
fact is, we had contracted deots with the banks,
and instalments of foreign debt were due ; and to
save our credit, a loan oi five millions was author-
ized to meet these specific objects. It, therefore,
is evident that this provision of the law of May,
1796. has expired, and the effect of the present
provision of this law is to revive the power of
making a loan of nearly five milliotis ; tor, under
the act of 1796, the Commissioners only borrowed
about eighty thousand dollars. I, therefore, hope
the woras will be stricken out.
Mr. Bayard said he would only ask if the act
was in force which gave authority to borrow fire
millions, whether the gentleman could have
thouj^ht it necessary now to give the power of re-
loaning the instaltnents on the Dutch debt here
or in Europe? On this point he thought it was
impossible to doubt. He beseeched gentlemen to
examine the bill. He did not know who drew
the bill. He presumed it was drawn hy the chair-
man of the Committee of Ways and Means; but
he was sure that he had introduced into it an idea
not intended by him.
181
HISTORY OP CONGRESS.
1182
PRIL. 1802.
Debt of the United States.
H/opR.
em. Mr. B. said that this was his opiDion,
lOUgh he might be mistaken.
Mr. Randolph. — The gentleman is mistaken,
his provision gives no power to the Commis-
Dners to contract with an individual. They
ay negotiate with' a number of individuals, in
oportioQ to the number of whom the security is
ihanced.
Mr. Bayard moved to strike out all that part
' the section (including the words to be stricken
kt by Mr. Griswold) which authorizes the Com-
issioners to contract for the payment of the
uteh debt. He said he saw neither the neces-
ty or utility of this provision for paying the
ibt, which must be made with individusus, or
ith bodies corporate. He wished to know why
e Commissioners could not pay it themselves?
e wished to know if the provision would have
ly other effect than to augment the sum paid ;
fact to create two debts; for, by incurring the
st, you do not expunge the first. By this sec-
}n there is no limitation. The Commissioners
ay contract with individuals to pay the whole
ne millions.
Mr. Randolph. — I will ask one simple ques-
3n. At whose risk are the payments now made ?
y whom are they now paid ? It is very easy for
le man to pay a debt to his neighbor ; but if he
IS to make payment in Europe or India, it must
t by others. There will, of course, be a risk ;
id even if he insures, he does not insure the sol-
mcy of the insurer. Does the gentleman mean
say that the actual payment of the foreign
sbt is not worth more than the nominal amount
' k? If so, wfiy have Congress offered to for-
gn creditors a transmutation of their demands
to a domestic debt, with one-half per centin-
ease? The French creditors availed themselves
' the offer ; but the Dutch creditors would not,
id the whole present inconvenience arises from
lis refusal. You are now obliged to make pay-
ent in Holland, and yet the gentleman says such
ly is worth nothing. What is this provision
It saying that, instead of relying on the indi-
dual drawers of bills, we prefer to rely on the
inks, or on a number of individuals?
The question was taken on Mr. Bayard's mo-
on to strike out, and lost — ayes 28, noes 42.
When Mr. Griswold's motion recurred to
rike out, " o^ with individuals ;" which was lost.
Mr. Bayard then moved the following amend-
lent : " Provided the United States shall not pay
more than the nominal amount of the debt, and
the expenses thereon authorized by this act."
Mr. Bayard. — My object now is very different
om that which I had in the motion I previously
lade. Under this power the Commissioners may
)ntract to pay twelve or fifteen millions instead
f nine millions of dollars. I am not opposed to
liberal confidence in the Executive; but I am
lore disposed to trust our laws, to rely on our-
;lves, and we are surely unworthy of legislating
rhen we cease to pursue our own judgments. I
ave no other view in this motion than to say
lat my sole object is to prevent the payment of
lore than the nominal amount of this debt. In
this amendment I have designated the expenses
authorized by this law beyond the principal and
interest. Now, I call upon gentlemen, if there
are any proper expenses not designated, to desig-
nate them. Let them do this, and then we shall
be acting upon ground that we understand. Do
gentlemen want greater power than this? As
the matter now stands^ you may not only pay the
principal and interest of the foreign debt, but a
profitable job may be made of it. I do not mean
to insinuate that any such thinp; is intended ; but
I do not see the propriety of giving more power
than is necessary. I hope, therefore, that this
amendment will prevail, and that' we shall not
give the unlimited power contained in the bill.
Mr. Randolph. — I am sorry to be so trouble-
some to the Committee, but I deem it necessary
to defend the bill against the objections of gentle-
men who do not seem to understand it'. The gen-
tleman asks what risk^are to be avoided by this
provision ? I will answer him ; that very risk of
making remittances, which has cost so much, and
for getting rid of wnich half of one per cent, has
been offered to be sacrificed. If tne Commis-
sioners, according to the gentleman from Dela- .
ware, wish to niake a lucrative job, what have
they to do but to give more than the value of
bills? Is not the discretion given by the bill
necessarily involved in the nature of the institu-
tion ? They may now sell one-half the stock they
issue for one cent in the dollar; and, by collusion,
they may buy bad bills. These are the powers
they now possess. It is evident, therefore, that
the whole objection is futile.
Mr. Qriswold. — The object of the amendment
is to limit the profit allowed to contractors. I do
not see why we ought not to limit it. If the gen-^
tleman is disposed to allow a profit, let it be lim-
ited, and let them not grasp at too much. I do
not believe it will be in the power of the bank, or
of individuals, to make remittance better than
the Government itself. I aver that this has been
done under as good terms by the Qovernment as
it can be done by individuals. This has been the
case heretofore, and it will undoubtedly continue
to be the case.
Mr. Bayard. — My object simply is to act on
this subject as on all others. We are bound to
our constituents to know the expenses attending
this business before we allow them. Now rcall
upon gentlemen to say whether they are ready to
pay, not only the amount of the debt, but all ex-
penses, no matter however great, which may be
incurred ? We are told by the gentleman from
Virginia, that we have given almost unlimited
discretion to the Commissioners of the Sinking
Fund, and the inference he draws from this fact
is, that we should now take away all limits to dis-
cretion. We go on a different principle ; we are
willing to delegate all necessary powers; the
power, for example, of purchasing bills ; but we
are not willing to convert a debt of nine millions
into one of fifteen millions. Are gentlemen, in
short, prepared to authorize expenses they know
nothing about ? This is a new doctrine^ and par-
ticularly from gentlemen on the other side.
1183
HISTORY OF CONGRESS.
\h
H. OP R.
Debt of the United StaUs.
April If;
The question was then taken on Mr. Bayarb's
amend mcDt. and lost — yeas 23, nays 42.
Mr. B. then moved so to amend the fourth sec-
tion, by striking out certain words, as to prevent
the bill from empowering the Commissioners of
the Sinking Fund to borrow under the law of
May, 1796, under a construction, which he con-
tended the bill gave, that that act was in force.
As soon as the year in which that act was passed
was over, those debts were paid, and the act
ceased; a Legislative construction that that act
is still in force, may perhaps justify the Executive
ih considering it so. Suppose it is in force, there
will be nothing in this act to repeal it. If the
object is not; by a side-wind, to authorize the bor-
rowing of five millions, under the idea that this
act is still in force, gentlemen will have no objec-
tion to this amendment. This I affirm can be the
only effect of the present provision. If gentlemen
have this object let them^vow it. I am, indeed,
?;reatly surprised at these provisions in this bill,
ts title is very splendid and promising ] but when
we come to the billj we find it contains an author-
ity to loan nine millions abroad, and to borrow
five millions at home; and in this way gentlemen
mean to extinguish the debt. I, therefore, do hope,
that if it is not the intention of gentlemen indi-
rectly to revive this loan, authorizing the borrow-
ing of five millions, they will agree to my amend-
ment.
Mr. Randolph. — If the gentleman from Dela-
ware can prove to me that the act of May, 1796,
has expired, I should be the first to second his
motion. But I am convinced that it has not, and
cannot, so long as any instalment of foreign debt
remains due. These are the terms of the act,
which fix its duration. For my part I should be
^pleased to have it proved that it is not in force,
and that there was no such power vested in the
sinking fund, to create stock, as therein author-
ized, in any circumstances.
When the Committee draughted this bill, it be-
came them to provide, that all the powers already
vested in the Commissioners of the Sinking Fund
should not be invalidated. Suppose, in this bill,
such a provision should have been omi tted, we would
have been then told, that the public faith was en-
dangered ; that there was no telling what might
happen in two or three years; and that, if this
poVer were taken away, the Commissioners might
be disabled from complying with the engagements
of the Gbvernment with the public creditors. We
should have heard of injuries inflicted on public
credit, and of violation oi the public faith ! This
provision has in truth no other effect than that of
leaving things exactly where they are, and telling
the courts that this present act shall not affect a
previous law. This act, therefore, really does
nothing. It is clear, however, to me, that the
provision of the act of May, 1796. is still in force,
extent of the five millions.
The gentleman says, that while we profess to
pay the public debt, we are calling, by side-winds,
for the power to borrow five millions. Vitk
no such thing; we only say that the ambcrL-
of the sinking fund, heretofore given byU?. .
not be affected by this bill. Whenwewa&:.^
we will call for them directly. WeiicsiL
none of the provisions of the act of Ma?. 1'
will be necessary, and that we shall not b« c :.
to create stock irredeemable till the year hj
to sell half the stock created at any market:::
below par. If the gentleman had examicci
tentively this proviso, he would ha?e founds.
be a thing of course, and copied almost yerL.
from former acts.
Mr. GaiswoLn. — It is admitted thaiDop^';
this bill goes to repeal the act of May, 17%: :.
act, therefore, cannot be affected by this. 1 .
then, why this section is introduced? Ciz:.'
introduced for no other purpose than togi;:.
consent of the Legislature to the existence wf:^
law ? Is it proper to give a Legislatire sapc.
to the continuance of tne act of May, 1796? I^
gentleman from Virginia says, he would f>: .
see this power out of existence. Whf.tfce:
leave it where it is ? That the power ha? tL--
is evident from the words. They are: P-a^
Commissioners may borrow any sum jn^:^-"
ing five millions of dollars, to be applitife-i*
payment of the capital, or principal, of is^K'
of the (febt of the United States, now datc:^
the course of the present year, to theBatiLi-
United States, or to the Bank of New Yai :
for any instalment of foreign debu"
The plain meaning of these words is, tii-
Commissioners may borrow, for any pane:-
debt now aue, to or become due daring ibeccj
year, first to the Bank of the United Sui^"
onily to the Bank of New York, and. Itu •
any mstalment of foreign debt. Thisisik.-
meaning of the statute, and this must be '^^^ *
struction put upon it, for the authority to "a*'
is expressly confined to that year. 1^ '^ ;-
contemplated at the passage of the act tki^-
power should be continued beyond the ynr. «
fact is, we had contracted debts with iii« ^■'■
and instalments of foreign debt were doe;*'-
save bur credit, a loan of five millions was J^
ized to meet these specific objects. IM^,'
is evident that this provision of the law:: ^
1796, has expired, and the effect of thf-
provision of this law is to revive the pv*
making a loan of nearly five millions; f*-
the act of 1796, the Commissioners only t<^r'';
about eighty thousand dollars. I, theraore-
the words will be stricken out.
Mr. Bayard said he would only ask it ^
was in force which gave authority to borr '•
millions, whether the gentleman cooiu :•
thought it necessary now to give the P*'^.
loaning the instalments on the Dutch dfb« -^
or in Europe? On this point he thougb: :•
impossible to doubt. He beseeched genilc3-
examine the bill. He did not knowwU-
the bill. He presumed it was drawn by"<^'*
man of the Committee of Ways and Meat^
he was sure that he had introduced into it »^'
not intended by him.
185
HISTORY OF CONGRESS.
1186
lpril
1802.
Debt of the United States.
H. opR.
Mr. Nicholson. — The gentleman from Dela-
ware asks, if the law of 1796 is siiil in force, where
the necessity of the power given in the present
3t to reloan the instalments of the Dutch debt?
will answer the gentleman in a few words. That
3 wer is necessary because the loan authorized by
le act of 1796 is not reimburseable till the year
319, whereas, under this law, the reloans oi the
utch debt are reimburseable within six years.
Mr. Randolph. — If the gentleman from Dela-
are wilt look into the act of 1796, he will find
lat an indefinite power is thereby giren to the
ommissioners to borrow any sums to meet the
istalments of debt become due, provided that no
-eater interest than six per cent, be allowed.
The question was then taken dn Mr. Bayard's
otion, and lost — ayes 28, noes 37.
The Committee then rose, and reported the bill
ith one amendment, which was immediately
;^reed to.
Mr. Bayard renewed his motion, made in Com-
ittee of the Whole, viz : to strike out, at the
id of the fourth section, the following word:):
'* Provided ahoays. That the power herein given
all not be construed to repeal, or afiect the power
tren to the CommissionerB by an act, entitled ' An
t making provision for the payment of certain debts
the United States,' to borrow certain sums, and to
11 the shares in the Bank of the United States be-
iging to the United States, in the manner, on the
ms, and for die purposes authorized by the said act."
On which the yeas and nays were — yeas 27
ys 46, as follows:
Yeas — John Bacon, James A. Bayard, Thomas
»ttde, John Campbell, Manasseh Cutler, Samuel W.
ina, John Davenport, Abiel Foster, Calvin Goddard,
•ger Griswold, Seth Hastings, Archibald Henderson,
illiam Hoge, Benjamin Huger, Thomas Lowndes,
wis R. Morris, Thomas Morris, James Mott, Nathan
ad, John Cotton Smith, Josiah Smith, Henry South-
I, John Stanley, John Stratton, Samuel Tenney,
llian K. Van Rensselaer, and Henry Woods.
Nats — Willis Alston, John Archer, Theodoms Bai-
, Phanuel Bishop, Richard Brent, Robert Brown,
illiam Butler, Thomas Claiborne, Matthew Clay,
in Condit, Richard Cutts, John Dawson, William
ckson, Lucas Elmendorf, William Eustis, John Fow-
, Edwin Gray, John A. Hanna, Joseph Heister, Wil*
n Helms, James Holland, David Holmes, George
rkson, Michael Leib, John Milledge, Samuel L.
tchill, Thomas Moore, Anthony New, Thomas
twton, jr., Joseph H. Nicholson, John Randolph, jr.,
in Smilie, Israel Smith, John Smith of Virginia,
ihard Stanford, Joseph Stanton, jr., John Stewart,
in Taliaferro, jr., David Thomas, Philip R. Thomp-
I, Abram Trigg, John Trigg, Philip Van Cortlandt,
in P. Van Ness, Isaac Van Home, and Robert
illiams.
Mr. Bayard moved to amend the bill by add-
r to the end of the fourth section the following
ditioaal proviso, to wit :
* And promded further. That nothing herein con-
ned shall be construed to revive any act, or part of
act, authorizing the loan of money ; and heretofore
pired."
\At. Randolph said he had no objection to the
lendment; which was carried without a division.
7th Con. — 38
Mr. Griswold renewed a Tnotion made by him
in the Committee of the Whole, to strike out of
the fifth section the following words, that are in
italics, viz:
" That, for the purpose of more effectually securing
the reimbursement of the Dutch debt, the Commis-
sioners of the Sinking Fund may, and they hereby are
empowered, with the approbation of the President of
the United States, to contract either with the Bank of
the United States, or loith any other public institution,
or tvith individuals, for the payment, in Holland, of
the whole, or any part of the principal of the satd'
Dutch debt, and of the interest and charges accruing
on the same, as the said demands become due, on sum
terms as the said Commissioners shall think most ad-
vantageous to the United States ; of^*
Mr. G. called the yeas and nays, which were —
yeas 26, nays 48, as follows :
TxAB — John Bacon, James A. Bayard, Thomas
Boude, John Campbell, Manasseh Cutler, Samuel W.
Dana, JohnDavenport, Ebenezer Elmer, Abiel Foster,
Calvin Goddard, Edwin Gray, Roger Griswold, Seth
Hastings, Archibald Henderson, Benjamin Huger,
Thomas Lowndes, Lewis R. Morris, Thomas Morris,
James Mott, Nathan Read, John C. Smith, John Stan-
ley, John Stratton, Samuel Tenney, Killian K. Van
Rensselaer, and Henry Woods.
Nats — Willis Alston, John Archer, Theodoras Bai-
ley, Robert Brown, William Butler, Thomas Clai-
borne, Matthew Clay, John Condit; Richard Cutts,
John Dawson, William Dickson, Lucas Elmendorf,
William Eustis, John Fowler, John A. Hanna, Daniel
Heister, Joseph Heister, William Helms, William
Hoge, James Holland, David Holmes, George Jackson,
Michael Leib, John Milledge, Samuel L. Mitchill,
Thomas Moore, Anthony New, Thomas Newton, jr.,
Joseph H. Nicholson, John Randolph, jr., John Smilie,
Israel Smith, John Smith, of New York, John Smith, of
Virginia, Josiah Smith, Henry Southard, Richard Stan-
ford, Joseph Stanton, jr., John Stewart, John Tal-
iaferro, jr., David Thomas, Philip R. Thompson, Abram
Trigg. John Trigg, Philip Van Cortlandt, John P.
Van Ness, Isaac Van Home, and Robert Williams.
Mr. Griswold moved to amend the fourth sec-
tion by inserting the words following, in Brackets:
" Be it enacted. That the Commissioners of the Sink-
ing Fund be, and they hereby are, empowered, with
the approbation of the President of the United States,
[in case the advance upon exchange between the Uni-
ted States and Holland shall exceed five per cent. ;
and in case difficulty shall occur in making remittance,]
as any instalments, or parts of the principal of the
said Dutch debt become due, to borrow on the credit of
the United States, either in America or abroad, either
by a reloan or prolongation of the loan heretofore ob-
tained, or by new loan, the sums requisite for the pay-
ment of the said instalments, or parts of prindpaL^'
Mr. Randolph moved to amend the foregoing
amendment, by striking out the word "and," and
inserting in lieu thereof the word " or."
Mr. Uriswold said the word "or" was a small
word, but in this case it was a very important one,
as it entirely defeated the object of nis amend-
ment. He must, therefore, request the yeas and
nays on inserting it^ which were accordin^y
taken as follows :
Ybas — Willis Alston, John Archer, John Bacon,
1187
HISTORY OF CONGRESS.
lib
H. OP R.
Debt of the United States,
April h
Theodoras Bailey, Robert Brown, William Butler,
Thomas Claiborne, Matthew Clay, John Condit, Tho-
mas T. Davis, John Dawson, William Dickson, Jjucas
Elmendorf, Ebonezer Elmer, John Fowler, Edwin Gray,
John A. Hanna, Joseph Heister, William Helms, Wm.
Hoge, James Holland, David Holmes, George Jackson,
Michael Leib, John Milledge, Samuel L. Mitchill, Tho-
mas Moore, Anthony New, Thomas Newton, jr., Jo-
seph H. Nicholson, John Randolph, jr., John Smilie,
Israel Smith, John Smith, of New York, John Smith,
of Virginia, Josiah Smith, Richard Stanford, Joseph
Stanton, jr., John Stewart, John Taliaferro, jr., David
Thomas, Philip R. Thompson, Abram Trigg, John
Trigg, Philip Van Cortlandt, Isaac Van Home, and
Robert Williams. — 47
NAT8-~James A. Bayard, Thomas Boude, John
Campbell, Manasseh Cutler, Samuel W. Dana, John
Davenport, Abiel Foster, Calvin Goddard, Roger Gris-
wold, Seth Hastings, Archibald Henderson, Benjamin
Huger, Lewis R. Morris, Thomas Morris, James Mott,
Nathan Read, John Cotton Smith, John Stanley, John
8tratton, Samuel Tenney, Killian K. Van Rensselaer,
and Henry Woods. — 22
Mr. Bayard moved to amend the amendment.
The word " difficulty" was so indefinite as to mean
anything. He, therefore, moved to introduce, after
the word "difficulty," the following words, "such
' as shall render it impracticable to make remit-
' tances of any instalments becoming due on the
' Dutch debt." Motion lost.
Mr. Nicholson. — I voted against the motion of
the gentleman from Delaware, because I consid-
ered it too vague to have any good effect ; but as
I am disposed to accommodate him in the adop-
tion of his idea, I move further to amend the
said amendment, as now amended, by striking out
therefrom the words "difficulty shall occur in
making remittances " and inserting, in lieu there-
of, the words "sucn difficulties shall occur in
' making remittances, as in the opinion of the
' Commissioners, shall render the purchase of bills
^ inexpedient." Carried without a division.
Mr. Griswold. — Can the question be divided
on the amendment as amended ? If so, I call for
a division at the word " or."
Mr. Elmbndorf. — I take it a gentleman cannot
divide his own motion.
The Speaker decided that the question was
divisible ; whereupon the question was taken by
yeas and nays, on the call of Mr. Griswold, on
the first member of the amendment, as follows —
" In case the advance upon exchange between the
United States and Holland, shall exceed five per
cent., or" — and lost, as follows;
YxAs — James A. Bayard, Thomas Boude, John
Campbell', Manasseh Cutler, Samuel W. Dana, John
Davenport, Abiel Foster, Calvin Goddard, Roger Gris-
wold, Joseph Hemphill, Archibald Henderson, Benja-
min Huger, Lewis R. Morris, Thomas Morris, Nathan
Read, John Stanley, Samuel Tenney, Killian K. Van
Rensselaer, and Henry Woods. — 19
Nats — Willis Alston, John Archer, John Bacon,
Theodorus Bailey, Robert Brown, William Butler,
Thomas Claiborne, Matthew Clay, John Condit, Rich-
ard Cutts, Thomas T. Davis, John Dawson, William
Dickson, Lucas Elmendorf, Ebenezer Elmer, John
Fowler, Edwin Gray, John A. Hanna, Joseph Heister,
William Helms, James Holland, David Holfflei.&.':
Jackson, Michael Leib, John MiUedge,SuDQdLM:>
ill, Thomas Moore, James Mott, Aathonj Xfv.Ti-
mas Newton, jr., Joseph H. Nicholson, Joiim Red:;,
junior, John Smilie, John Smith, of New Vol. .:
Smith, of Virginia, Josiah Smith, Richani ^i
Joseph Stanton, jr., John Stewart, John Stni-
John Taliaferro, jr., David Thomas, Philip B.U:>
son, Abram Trigg, John Trigg, Philip Vu i :■
landt, Isaac Van Home, and Robert WiUiaiiKr4i
Mr. Batard. — The question is aowont^sfe,
ond member of the amendment.
Mr. Randolph. — It falls of course witk :
failure of the first member.
Mr. Bayard. — I move to strike oat tiie t.-.
« or."
Mr. Speaker. — The word "or" was put:::
a vote of the House; it is, therefore, not is ry
to strike it out.
Mr. Bayard. — I -move, then, the ame&ci
offered by the gentleman from MarylauM
Nicholson,) as a distinct motion.
Mr. Randolph considered the whole k:-.
on, as the Chair had already determined.
Mr. Speaker. — The motion of the gdo:
from Delaware is not in order.
Mr. Bayard. — I have another zmnizs: :
offer. The sixth section provides for em:.' ^
an agent abroad, whom it coDtemplaies ;. :
three thousand dollars a year. I can odf in-
sider this provision as intended to create as::-
which some one is to fill, and to receire r'
thousand dollars a year. It is the doctrioer:
day to reduce Executive patronage. We ^'
not, therefore, to knock down oae office. i:c-
mediately establish another. We hare later -
down one ofiice at the Hague, which cost t^>
tion four thousand five hundred dollars v-t
The people were congratulated upootnea'-^
Circulars were written by honorable geail--''-
informing their constituents of it as a great:!',
and now we impose upon those geotkiDfl ''
necessity of writing other circulars to stja '•
another office is created with a salary c' i"^
thousand dollars. It is surely improper t:."
gentlemen this trouble. Is there anj di;'^"
between an agent and a diplomatic cbn''
I do not know but that the object may be c*'
a political agent for the Government to f^-^
pond with. If we had no occasion for a Mj^'
we can have no occasion for an agent, i- ^
business required by this act can be done lii*--^
a mercantile house, which must at all eTc:^'
employed by the agent.
There are other parts of the bill froo^-;
find, that though we are saving by parsjo"-'
one hand, we are disbursing with prodizi^'
the other. One of the provisions of the Im-« •
one quarter per cent, for borrowing two c- -
which commission will amount to sixil^-^
dollars. With respect^, however, to this i^^ •
I consider it as disbursing the public msB^j'
necessarily. I therefore move to strike cc* •
sixth section, which is as follows:
" And be it further enacted, That the Comak-
ers of the Sinking Fund be, and thej Iwiff^'
1189
HISTORY OF CONGRESS.
1190
April, 1802.
Debt of the United States.
H. opR.
. powered, with the approhation of the President of the
United States, to employ, if they shall deem it neces-
sary, an agent* in Europe, for the purpose of transact-
ing any business relative to the discharge of the Dutch
debt, and to the loan authorized by this or any other
act, for the purpose of discharging the same ; and also
to allow him a compensation not exceeding three thou-
sand dollars a year, to be paid out of any moneys in
the Treasury not otherwise appropriated.
Mr. Bayard called the yeas and nays on strik-
ing out, which were — yeas 18, nays 43. as follows :
Yeas — James A. Bayard, Thomas Boude, Manasseh
Cutler, Samuel W. Dana, John Davenport, Ebenezer
Elmer, Calvin Goddard, Roger Griswold, Joseph Hemp-
hill, Archibald Henderson, William Hoge, Benjamin
Huger, Lewis R. Morris, James Mott, Nathan Read,
John Stanley, Killian K. Van Rensselaer, and Robert
. Williams.
Nats — Willis Alston, John Archer, John Bacon,
Theodorus Bailey, Robert Brown, William Butler,
Thomas Claiborne, Matthew Clay, John Condit, Tho-
mas T. Davis, John Dawson, William Dickson, Lucas
Elmendorf, John Fowler, Edwin tiray, John A. Hanna,
Joseph Heister, William Helms, James Holland, David
Holmes, George Jackson, Michael Leib, John Milledge,
Samuel L. Mitchill, Thomas Moore, Anthony New,
Thomas Newton, jr., Joseph H. Nicholson, John Ran-
dolph, jr., John Smilie, Israel Smith, John Smith, df
New York, John Smith, of Virginia, Richard Stanford,
Joseph Stanton, jr., John Stewart, John Taliaferro, jr.,
David Thomas, Philip R. Thompson, Abram Trigg,
John Trigg, Philip Van Cortlandt, and Isaac Van
Home.
Mr. Batard moved to amend the fifth section,
by striking out the word " fourth" and inserting
the word eighth. Mr. B. said this was the com-
mission allowed the a^ent of the commissioners
for purchasing bills, <&c. One fourth per cent,
commission would on two millions amount to
fire thousand dollars. One eighth per cent, would
amount to two thousand five hundred dollars,
which he deemed a competent sum.
Mr. Ranoolph. — The gentleman from Dela-
ware is indeed srown extremely saving of the
public money of Tate days ! We are told that the
amount of commissions on the purchase of two
millions three hundred thousiuad dollars will be
five thousand dollars. Let it, however, be re-
marked, that this great sum is to be purchased
not by one individual, but by a great many, scat-
tered all over the United States. It is true that
the Bank of the United States has ofifered its ser-
vices gratis. But it has appeared to me that the
commission allowed in the bill is a small charge
in the case of a provision like this, and that the
individual who is entrusted with such a power
ought to receive at least one-fourth per cent. Yet
the gentleman inveighs against this as a vast ex-
tension of Executive patronage, and this under
an Administration by whom hundreds of officers
have been abolished. He says two mighty ones
are created ! I make no doubt but that such a
svstem of patronage will rouse the indis^nation of
the whole American people until it shall equal
that of the gentleman from Delaware !
Mr. Bayard. — This step, if taken, will be pro-
gressive. Two offices are now created. This is
the time to complain. I understand that more
offices are to be made under the Judiciary system.
I am very happy at the compliment of the gen-
tleman from Virginia. If those who have been
heretofore against expense are now prodigal of
the public money, it is necessary to nave some
men who are economical of it. I do not know
that the putting down one office is a reason for*
putting up other officers. This motion, however,
is not for abolishing any office, but for giving two
thousand five hundred dollars, which I think a
liberal compensation, as the agent can purchase
bills through the post office, as the purchase is
confined to mercantile towns.
The question was then taken on Mr. Bayard's
motion, and lost — yeas 19.
The bill was then ordered to be engrossed for a
third reading to-morrow.
Tbursday, April 15.
Mr. EusTiB, from the committee appointed on
the twelfth instant, presented a bill for the relief
of the widows and orphan^ of certain persons who
have died, or may hereafter die, in the naval ser-
vice of the United States; which was twice read
and committed to a Committee of the Whole to-
morrow.
Mr. Bacon, from the committee to whom was
referred, on the sixth instant, a letter from the
Secretary of the Treasury, accompajiying a com-
munication from the Comptroller of the Treasury,
and sundry documents relating to the claim or
Comfort Sands and others, made a report thereon ;
which was read, and ordered to be committed to a
Committee of the Whole to-morrow.
The House resolved into a Committee of the
Whole on an engrossed bill to provide for the es-
tablishment of certain districts; and therein to
amend an act, entitled "An act to regulate the
collection of duties on imports and tonnage," and
for other purposes ; and, after some spent therein,
the Committee rose and reported an amendment
to the sixth section thereof; which was twice read,
and, on the question being put thereupon, agreed
to by the House.
Ordered^ That the said amendment be present-
ly engrossed, and, together with the bill, read the
tnird time to-day.
A message from the Senate informed the House
that the Senate have passed the bill, entitled ^^An
act in addition to an act, entitled 'An act in addi-
tion to an act regulating the grants of land appro-
priated for military services, and for the Society
of the United Brethren for propagating the Gospel
among the Heathen,'" with several amendments;
to which they desire the concurrence of this House.
The House proceeded to consider the amend-
ments of the Senate to the last mentioned bill :
Whereupon,
Ordered^ That the said amendments, together
with the bill, be committed to Mr. Davis, Mr.
Dennis, and Mr. Alston.
The House resolved itself into a Committee of
the whole House on the bill to abolish the Board
of Commissioners in the City of Washington, and
I
I
1191
HISTORY OF CONGRESS.
H. OF R.
Pulwar Skipwith,
Apbiu 15i>i.
to make provision for the repayment of loans
made by the State of Maryland, for the use of the
city ; and, after some time spent therein, the Com-
mittee rose and reported several amendments
thereto; which were severally twice read, and
agreed to by the House.
Ordered, That the said bill, with the amend-
ments, be engrossed, and read the third time.
An engrossed bill to provide for the establish-
ment of certain districts, and therein to amend an
act, entitled ''An act to regulate the collection of
duties on imports and tonnage/' and for other pur-
poses, was read the third time, and passed.
The House resolved itself into a Committee of
the Whole on the bill for the relief of Lewis Tou-
sard; and, after some time spent therein, the Com-
mittee rose and reported an amendment thereto;
which was twice read and agreed to by the House.
Orderedj That the said nilj, with the amend-
ment, be engrossed, and read the third time to-
morrow.
An engrossed bill to regulate and fix the com-
pensation of the officers of the Senate and House
of Representatives, was read the third time and
passed.
The House went into a Committee of the
Whole on the bill to establish the Board of Com-
missioners of the City of Washington and to pro-
vide for the payment of several loans to Maryland.
The bill was reported without amendment, and
oniered to a third reading to-morrow.
An engrossed bill to provide for the establish-
ment of certain districts, <S6c., was read the third
time, and passed.
The House went into Committee of the Whole
on the bill to &x the compensation of the officers
of the Senate and House of Representatives.
The several blanks were filled, on the motion
of Mr. Davenport, with the followinff sums: an
annual allowance of two thousand dollars to the
Secretary of the Senate and the Clerk of the
House of Representatives; to the principal clerk
of each House, one thousand three hundred dol-
lars ; to the engrossing clerk of each House, one
thousand dollars ; to the Sergeant-at-Arms of each
House, eight hundred dollars; to the Doorkeeper
of the House of Representatives; five hundred dol-
lars, with a per diem allowance during the session
of two dollars ; and to the Assistant Doorkeeper
of each House four hundred and fifty dollars, with
a per diem allowance during the session of two
dollars.
The Committee rose, and the House took up
the report, agreed to it, and ordered the bill to a
third reading — afterwards read a third time, and
passed.
FULWAR SKIPWITH.
The House went into a Committee of the
Whole on the bill for the relief of Fulwar Skip-
with.
That part of the bill which allows compensa-
tion for stolen ingots was agreed to without a di-
vision.
The second section allows an annual compen-
sation for consular services.
Mr. Dawson moved to fill the blank with tbre*
thousand dollars.
This motion was opposed by Messrs. T. Mot-
Ris, Stanley, and Bayard.
A motion was made to strike oot the s«tki
which prevailed — yeas 35, nays 18.
The Committee reported, the House immfliffr
ly took up the report, and agreed to itbyyeasri
nays — yeas 43, nays 26, as follows:
YsAB — John Archer, James A. .Bajard, Pb»
Bishop, Thomas Boade, William Butler, John Ci^
bell, Thomas Claiborne, Richard Cutti, Joim Dp-
enpoit, John Dennis, Ebenezer Ekoer, Abie^ Foit
Calvin Goddard, Roger Griswold, John A. HiBi
William Helms, Arclubald Henderson, WilliaiD H:«.
Benjamin Huger, George Jackson, Micfaad Leib,1W
as Lowndea, Samuel L» Mitchill, Lewis R. Mans
Thomas Morris, James Mott, Anthony Ne^.l^tau
Plater, William Shepard, John Cotton Smitk. ik
Smith, of New York, Samuel Smith, John Sas!?.
John Stewart, Jbhn Stratton, Benjamin Tdlotift
Samuel Tenney, Thomas Tillinghast, John TiiftX-
lian K. Van Rensselaer, Peleg Wadsworth, Lav
Williams, and Henry Woods.
Nats— John Dawson, Lucas Blmendoif, W-js
Eustis, John Fowler, William B. Giles, EdincGs^
Daniel Heister, Joseph Heister, James HoUanilVa'
as Moore, Thomas Newton, jr., Joseph H. Nkbi^.
John Randolph, jr., John Smilie, John SimtlLci^>
ginia, Josiah Smith, Henry Southard, Rtchud^u^t
Joseph Stanton, jr., John Taliaferro, jr., David Tkae
Philip R. Thompson, Abram Trigg, and hm Vc
Horhe.
Ordered, That the said bill, with the ulps^-
ment agreed to, he engrossed, and read ikt^
time to-morrow.
UNITED STATES DEBT.
The bill for the redemption of the whole of '■
public debt was read the third time; when, en ^'
question of passage,
Mr. Dana said that he should trouble the fl-'
with but a very few remarks. He considereii t:^
bill, so far as it was meant to be an efficient ?r^
vision for the payment of the public debM^a-
necessary, as the provisions of former iawsTr*
completely adequate. When GovernmeDi^-
once contracted a debt, and appropriated m-^'
to its dischargee, there is wanted no special s^'
quent authority to recognise the full force o:i
obligation. But he should have no objatir '
add promise to promise, if the new proniis?*^-^
not connected with a power to make new U
and new foreign connexions and to create [?»
foreign claims. He considered the proTisiocy
the bill to be such as may eventually iDcrea<ct?
debt, and lessen the responsibility of the p-*'
officers. It was on these grounds principally tx-^
he deemed it improper and unnecessary lo !*'
the bill. ^
The question on the passage of the bill was -^
taken by yeas and nays, and stood— yws Sa, sai
19, as follows :
Yeas— Willis Alston, John Archer, John ^*
Thfeodorus Bailey, Phanucl Bishop, Robert ^rf
William BuUer, Thomas Claiborne, Matthcir U
John Condit, Thomas T. Davis, John Dtwsea. «*'
1193
HISTORY OF CONGRESS.
1194
April, 1802.
Debt of the United States.
H. opR.
Ham Dickson, Lucas Elmendoif, Ebenezer Elmer, Wil-
liam Eufitis, John Fowler, Edwin Gray, John A. Hanna,
Daniel Heister, Joseph Heister, William Helms, Archi-
bald Henderson, William Hoge, James Holland, David
Holmes, Benjamin Huger, George Jackson, Michael
Leib, John Milledge, Samuel L. Mitchill, Thomas
Moore, James Mott, Anthony New, Thomas Newton, jr.,
Joseph H. Nicholson, John Randolph, jun., John Smi-
lie, Israel Smith, John Smith, of Virginia, Josiah,
Smith, Henry Southard, Richard Stanford, John Stanley,
Joseph Stanton, jun., John Stewart, John Taliaferro,
jun., Thomas Tillinghast, Philip R. Thompson, Abram
Trigg, John Trigg, Philip Van Oortlandt, John P. Van
Ness, Isaac Van Home, and Robert Williams
Nats — Thomas Boude, John Campbell, Samuel W.
Dana, John Davenport, John Dennis, Abiel Foster,
Calvin Goddard, Roger Griswold, Seth Hastings, Joseph
Hemphill, Thomas Lowndes, Lewis R. Morris, Thomas
Morris, Thomas Plater, John Cotton Smith, John Strat-
ton, Peleg Wadsworth, Lemuel Williams, and Henry
Woods. ^
Mr. T. Morris moved to amend the title of the
bill, by so altering it as to read, "An act making
certain previsions in relation to the public debt."
Mr. Dennis moved, aDd*Mr. Morris agreed to,
the addition of the following words, *^and author-
izing a reloan of parts thereof."
Mr. Bayard supported, and Mr. Van Ness, op-
posed the motion ; when the question was taken
by yeas and nays, at the call of Mr. T. Morris,
on the joint amendment, and lost — yeas 26, nays
49, as follows:
Yeas — James A. Bayard, Thomas Boude, John
Campbell, Samuel W. Dana, John Davenport, John
Dennis, Abiel Foster, Calvin Goddard, Roger Griswold,
Scth Hastings, Joseph Hemphill, Archibald Henderson,
Benjamin Huger, Thomas Lowndes, Lewis R. Morris,
Thomas Morris, Thomas Plater, John Cotton Smith,
John Stanley, John StrMton, Samuel Tenney, Thomas
Tillinghast, George B. Upham, Peleg Wadsworth,
Lemuel Williams, and Henry Woods.
Nats — Willis Alston, John Archer, John Bacon,
Theodorus Bailey, Phanuel Bishop, Robert Brown,
William Butler, Matthew Ciay, John Condit, Richard
Cutts, John Dawson, William Dickson, Lucas Elmen-
dorfy William Eustis, John Fowler, Edwin Gray. John
A. Hanna, Daniel Heister, Joseph Heister, William
Helms, WiUiam Hoge, James Holland, David Holmes,
George Jackson, Michael Leib, John Milledge, Samuel
Ii. Mitchill, Thomas Moore, James Mott, Anthony
IVew, Thomas Newton, jun., Joseph H. Nicholson,
John Randolph, jun., John Smilie, Israel Smith, John
Smith, of Virginia, Josiah Smith, Henry Southard,
Richard Stanford, Joseph Stanton, jun., John Stewart,
fohn Taliaferro, jun., Philip R. Thompson, Abram
Frigg, John Trigg, Philip Van Conlandt, John P.
Van Ness, Isaac Van Home, and Robert Williams.
Go the question, that the title be, '^ An act mak-
ing provision for the redemption of the whole of
:he public debt of the United States," it was re-
solved in the affirmative.
Friday, April 16.
An engrossed bill to abolish the Board of Com-
nissioners in the City of Washington, and to make
>rovision for the repayment of loans made by the | end thereof the following proviso, to wit :
State of Maryland for the use of the city, was read
the third time and passed.
An engrossed bill for the relief of Fulwar Skip-
with was read the third time and passed.
Mr. S. Smith, from the Committee of Com-
merce and Manufactures, to whom were referred,
during the present session, the memorials and pe-
titions of sundry calico printers in the city of
Philadelphia ana elsewhere, in the State of Penn-
sylvania; of sundry citis^ens of the States of New
Jersey and Delaware ; of sundry cordwainers of
the States of Massachusetts and Delaware; of
Samuel Corp; of sundry merchants of Richmond
and Manchester, in Virginia ; of sundry shoema-
kers of the town of Lynn, in Massachusetts, and of
Thomas Siagg, jr., and Thomas Snell ; and to
whom it was referred by a resolution of the House,
on the eighteenth of February last, **to inquire
and report on the expediency of erecting a poi;^ of
entry at the town of Beaufort, at present within
the district of Newbern, in the Slate of North
Carolina," made a report thereon; which was
read: Whereupon,
Ordered^ That the consideration of the said
memorials and petitions, and resolution of the
House, be postponed until the third Monday in
November next.
A Message was received from the President
OP THE United States, as follows:
Gentlemen of the House of JRepresentativee :
I now transmit the papers desired in your resolaUcm
of the sixth instant. Those respecting the Berc^au
will sufficiently explain themselves. The officer charg-
ed with her repairs states, in his letter, received August
27, 1801, that he had been led by circumstances, which
he explains, to go considerably beyond his orders. In
questions between nations who have no common umpire
but reason, something must often be yielded of mutual
opinion, to enable them to meet in a common point
The allowance which has been proposed to the offi*
cers of that vessel being represented as too small for
their daily necessities, and still more so as the means of
paying, before their departure, debts contracted with
our citizens for subsistence, it was requested on their
behalf that the daily pay of each might be the measure
of their allowance.
This being solicited, and reimbursment assumed by
the agent of their nation, I deemed thatfthe indulgence
would have a propitious effect in the moment of return-
ing friendship. The sum of eight hundred and seven^
dollars and eighty-three cents was accordingly fiirnished
them for the five months of past captivity, and a propor-
tional allowance authorized until tiieir embarkation*
TH. JEFFERSON.
Aprii 16, 1802.
The said Message was read, and together with
the documents transmitted therewith, referred to
Mr. Eustis, Mr. Tallmadge, Mr. Thompson, Mr.
Campbell, and Mr. Hanna; that they do examine
the matter thereof, and report the same, with their
opinion thereupon, to the House.
LEWIS TOUSARD.
An engrossed bill for the relief of Lewis Toa-
sard was read (he third time : Whereupon, a mo-
tion was made to amend the bill, by adding to the
1195
HISTORY OF CONGRESS.
H. OP R.
Contort Sands.
APSIL > i
"Provided, That nothing herein contained shall he
construed to sanction the conduct of any person who
has made advances of money not Authorized by law."
And, the question being taken thereupon, it was
UDanimously resolved in the affirmative.
Ordered, That the said amendment be present-
ly engrossed, and, together with the bill, be read
tne third time.
The said amendment being brought m engross-
ed, the bill, as amended, was read the third time,
and, on the question that the same do pass, it was
resolyed in the affirmative — yeas 63, nays 12, as
follows :
Yeas — John Archer, John Bacon, Theodonis Bailey
James A. Bayard, Phanuel Bishop, Thomas Boudei
Walter Bowie, Robert Brown, Thomas Claiborne, John
Condit, Richard Cutts, John Davenport, Thomas T.
Davis, John Dennis, William Dickson, Ehenezer El-
mer, William Eustis, Abiel Foster, Calvin Goddard,
Ecfwin Gray, Roger Griswold, John A. Hanna, Daniel
Heister, William Helms, Joseph Hemphill, Archibald
Henderson, William Hoge, David Holmes, Benjamin
Huger, Michael Leib, Thomas Lowndes, John Milledge,
Samuel L. Mitchill, Lewis R. Morris, Thomas Morris,
Anthony New, Thomas Newton, jr., Joseph H. Nich-
olson, Thomas Plater, Nathan Read, William Shepard,
John Smilie, John Cotton Smith, John Smith, of Vir-
ginia, Samuel Smith, Heniy Southard, Richard Stan-
ford, John Stanley, Joseph Stanton, jr., John Stratton,
John Taliaferro, jr., Samuel Tenney, David Thomas,
Thomas Tillinghast, Philip R. Thompson, George B.
Uoham, Philip Van Cortlandt, Isaac Van Home, Kil-
liui K. Van Rensselaer, Peleg Wadsworth> Lemuel
Williams, Robert Williams, and Henry Woods.
Nats — WilUs Alston, William Butler, Joseph Heis-
ter, James Holland, George Jackson, James Mott, Israel
Smith, John Smith, of New York, Josiah Smith, John
Stewart, Abram Trigg, and John Trigg.
COMFORT SANDS.
The House resolved itself into a Committee of
the Whole on the report of the committee to
whom* were referred a letter from the Secretary
of the Treasury, and sundry documents relative to
the claim of Comfort Sands and others ; and, after
some time spent therein, the Committee rose and
reported to the House their agreement to the first
and second resolutions, and their disagreement to
the third and fourth resolutions contained in the
report of the select committee ; which were deliv-
ered in at the Clerk's, table, where the same were
read, as follows :
1st. *' Resolved, That provision ought to be made by
law to authorize the Attorney General of the United
States to agree with such person or persons, or with the
legal representative or representatives of such person or
persons, as are interested in an award or report of Isaac
Roosevelt and others, referees between the United States
and Comfort Sands and others, on the twenty-fifth day
of October, one thousand seven hundred and eighty-
seven, on a statement of a case which shall try and de-
termine the validity of said award or report, before the
circuit court of the United States, for such circuit as the
Attorney General, and the persons interested as afore-
said, may agree to.''
2d. '^Resolved, That provision ought to be made by
law to authorize the Attorney General of the United
States, in case the said award or report shall be adjudged
to be binding on the United States, to agree on u!.%«
or issues, either in law or in fiict, which shall \n '^
question whether William Duer and Daniel fvin t
either of them, were co-partners with the said C^t
Sands and others, in the contracts on which iht c
award or report was made ; and, if lo, whetSii L :
what part of the sums wluch are doe from tb;::. ?
either of them, to the United States, ought to be ai.'.
ed from the sum awarded or reported, as aforatRjir
the proviso in the act of Congress ptaied the secniii-
of March, one thousand seven hundred and mnchn
entitled "An act for the relief of Comfort Siadi c
others."
3d "Resolved, That provision ought to be mad!.):
law, to authorize the Attorney General of tbe I'ln
States, in case a decision shall be mpde againa 'k %
lidity of said award or report, to agree on the appor-
ment, by the said court, of referees to decide codcu<.i>9
(subject only to legal exceptions to be made beMtiL
court) on the merits of the original claim of nidCc-
fort Sands and others, on which said award or nv:.
was founded.
4th. Resolved, That provision ought to be oiif ii;
law for the payment of any sum or sums whkii mv i
found due from the United States pursuant to tbes>"!-
solutions, and such proceedings as may herealteikU!
conformably thereto."
The House then proceeded to consider tb li
report at the Clerk's table : Whereupoo.ib*:'^
resolution contained in the report of th^y/*
committee, to which the Committee of tbef*
House reported their agreement, being agai:^^-
was. on the question put (hereupon, agreed u"
the tlouse — yeas 43, nays 36. as follow:
Ybas — John Bacon, Theodonis Bailey^Jr^i
Bayard, Thomas Boude, John Campbell, Ma£i»^.
Cutler, Samuel W. Dana, John Davenport, Tbcst-
Davis, John Dennis, William Dickson, Ehenaertrf.
William Eustis, Abiel Foster, Calvin Goddarii^
Griswold, Seth Hastings, Danial Heister, Joseph BtC"
hill, Archibald Henderson, Benjamin Hoger. 1Va>
Lowndes, Samuel L. Mitchill, Lewis R. Morns,Tba»
Plater, Nathan Read, William Shepard, Israel ^ci
John Cotton Smith, Samuel Smith, Hemj Sc^f
John Stanley, John StraUon, Samuel Tennev. IVcn
Tillinghast, George B. Upham, Philip Van Ci^'-
John P. Van Ness, Killian K. Van Renseelaer. M
Wadsworth, Lemuel Williams, and Henrv VTwi^
Nats— Willis Alston, John Archer, PhmuelB<-
Walter Bowie, Robert Brown, William Butler. U->
Claiborne, Matthew Clay, John Condit, Sichardi ^
Lucas Elmendorf, Edwin Gray, Joseph Heister, ^ --^
Helms, James Holland, David Holmes, Georgr J^^"-
Michael Leib, John Milledge, Thomas Moore. J^
Mott, Anthony New, Thomas Newton, junior, Ji*'
H. Nicholson, John RandoIph,junior, J(^n^i^'^ '
Smith, of New York, John Smith, of Virginia, L'/
Stanford, Joseph Stanton, jr., John Stewart Jo^-i •''''
iaferro, jr., Philip R. Thompson, Abram Trigg. '--
Trigg, and Robert Williams.
The second resolution contained in the t^'-
of the select committee, to which the ComD"^
of the whole House also reported their agrrfs-^'
being again read, was amended at the Clefi[*>'^'
and, on the question put thereupon, as aoe::-
agreed to by the House as follows:
Resolved, That provision ought to be made bj !>* -'
authorize the Attorney General of the United So:^'
1197
HISTORY OF CONGRESS.
1198
April, 1802.
Naval Appropriations.
H. OP R,
case said award or report shall be judged to be binding
on the United States, to agree on an issue or issues,
either in law, or in fact, which shall try the question
whether William Duer or Daniel Parker, or either of
them, were co-partners with the said Comfort Sands, and
others, in the contracts on which the said award or report
was made.
The third and fourth resolutions in the report
of the select committee, to which the Committee
of the whole House reported their disagreement,
being again read, the question was seyerally taken
thereupon, that the House do concur with the Com-
mittee of the Whole in their disa^eement to the
same, and resolved in the affirmative.
Ordered, That a bill or bills be brought in, pur-'
suant to the first and second resolutions ; and that
Mr. Bacon, Mr. Thomas, and Mr. Goddard, do
prepare and bring in the same.
Saturday, April 17.
Mr. Samuel Smith, from the Committee of
Commerce and Manufactures, presented, a bill to
amend ^^An act to establish the compensation of
the officers employed in the collection of the du-
ties on imposts and tonnage," and for other pur-
poses; which was read twice, and committed to a
Committee of the whole House ,on Monday next.
[The bill among other provisions directs that
hereafter the clear annual receipts of a collector
shall not exceed 6,000, of a naval officer 3,500, and
of a surveyor 3,000 dollars.]
The House resolved itself into a Committee of
the Whole on the bill for the relief of the widows
and orphans of certain^persons who may have died,
or may hereafter die, m the Naval service of the
United Slates ; and, after some time spent therein,
the Commitcee rose and reported amendments
thereto ; which.were severally twice read, and, on
the question put thereupon, disagreed to by the
House.
A motion was then made, and the question be-
ing put, to amend the said bill at the Clerk's ta-
ble, by striking oiit the word, "seamen and ma-
rines," in the fifth line of the first section thereof,
it passed in the negative — yeas 21, nays 45, as
follows:
Ybas — Willis Alston, Theodoras Bailey, Matthew
Clay, Richard Cults, John Davenport, John Dennis,
Abiel Foster, William Helms, George Jackson, Thomas
Moore, Thomas Morris, Israel Smith, John Smith, of
New York, Samuel Smith, David Thomas, Thomas
Tillmghast, Philip R. Thompson, Abram Trigg, John
Trigg, Isaac Van Home, and Peleg Wadsworlh.
Nats — John Archer, John Bacon, Phanuel Bishop,
Walter Bowie, Robert Brown, William Butler, Thomas
Claiborne, John Gondii, John Dawson, Ebenezer El-
mer, William Eustis, Calvin Goddard, John A. Hanna,
Seth Hastings, Daniel Hcister, Joseph Heisler, Archi-
bald Henderson, James Holland, David Holmes, Ben-
jamin Huger, Michael Leib, Thomas Lowndes, Samuel
L. Mitchill, James Molt, Thomas Newton, jr., Thomas
Plater, John Randolph, Nathan Read, William Shep-
ard, John Smilie, John Cotton Smith, Josiah Smith,
Henry Southard, Richard Stanford, John Stanley, Jo-
seph Stanton jr., John Stewart, John Strallon, John
Taliaferro, jr., Samuel Tenney, George B. Upham,
John P. Van Ness, Killian K. Van Renselaer, Lemuel
Williams, and Henry Woods.
The said bill was then amended at the Clerk's
table, and, together with the amendments agreed
to, ordered to oe engrossed, and read the third time
to day.
NAVAL APPROPRIATIONS.
The House went into a Committee of the Whole
on the bill making appropriations for. the Naval
service for the year 1802. «
Mr. Ranuolph moved to fill up the several
blanks in the bills with specified sums, which were
all agreed to. the total of which amounts to nine
hundred thousand dollars.
Mr. Dana moved to insert three hundred and
five thousand dollars, for the purpose of timber,,
dec, for the seventy-fours, the sum in the first
estimate in the Secretary of the Navy, instead
of one hundred and ninety-five thousand dollars,
in the last estimate.
Motion lost — yeas 14.
Mr. Dana moved to insert one hundred thousand
dollars, for Navy docks, dbc, the sum in the first
estimate of the Secretary, instead of fifty thousand
dollars, in the la.st estimate.
Motion lost — yeas 17.
Mr. Eustis moved to add a new section to the
bill authorizing the Secretary of the Navy, with
the approbation of the President of the United
States, to carry the excess of any specific appro-
priation beyond the sum expended to the deficiency
arising under any other specific appropriation of
the bill.
Messrs. Ranuolph. Macon, and Bacon, op-
posed; and Messrs. Eustis and S. Smith sup-
ported the motion, which was lost.
The Committee rose, when '
Mr. Huger moved to disagree to the report of
the committee for filling the olank for contingent
expenses of the navy with fifty thousand dollars,
with the view of filling it up with one hundred
thousand dollars.
It is not my intention, said Mr. H., to go into
an argument. The arguments assigned in Com-
mittee by two gentlemen, were sufficient to show
the impropriety of cutting down so low the con-
tingent fund. This is an extraordinary change
in the opinion of the Secretary. I conceive that
he had as great a regard to economy in the com-
mencement of the session as he can have now.
I cannot, therefore, understand with what view
this change has taken place. We have seen, by
his estimate offered in the preceding part of the
session, that le.ss was required than had been ex-
pended the preceding year ; afterwards he offers
another estimate that required $200,000, less than
the first; and now a still smaller sum is required.
I have great confidence in our officers generally,
and in the Secretary of the Navy in particular ;
but I am inclined to believe, in this business, he
has not been left to his own mind. I was origin*
ally a friend to a Navy, and I think this is the
time to cherish it. I have, notwithstanding, no
objection to econominal arrangements in the Ar-
my. I have accordingly voted for reducing the
1199
HISTORY OP CONGRESS.
126j
H. OF R.
Naval Appropridztions,
ApiiLlsiS
Army. That establishment you can repair in a
short time. But not so with respect to the Nary,
for the establishment Of which you must prepare
for years beforehand.
It seems, however, (hat $200,000 must be saved,
and that this department must be pared down, to
the extreme injury of the country. We have
heard from gentlemen, that two public vessels,
now requiring repairs, will consume the whole
of this $50,000. If this be the case, is it right to
make our appropi«iation so low as to provide for
no other contingency ? Is this right ? Will gen-
tlemen suffer our public vessels to rot for want of
repairs ? I do verily believe this will be the ef-
fect of this step. Is this the liberal support which '
ought to be given to a Navy ? Suppose one of
your national vessels meet a Tripolifan, must she
not repair ?
It is true, that we are obliged to keep up the
establishment lo satisfy the public sentiment ; but
we are at the same time doing that which will
shake the Navy. I believe the first estirhate
proper, as it was made before the rage for econo-
my was declared in this House. This is the most
Eitiful of all pitiful economies ! If we are not to
ave a Navy, let us, in God's name, put it fairly
and decidedly down.
Mr. S. Smith. — If the gentleman's motion does
(UOt prevail. I will move an addition to the bill
which will overcome his objection, and which, I
hope, will meet the unanimous approbation of
the House, viz : that any excess on the items for
which appropriations are made beyond the actual
expenditures, shall be applied to the repairing ves-
sels injured m actual service.
Mr. Hdger. — I am opposed to the amendment
of the gentleman. The effect of it will be, in or-
der to meet one object, to starve several others.
I wish the whole former estimate of the Secreta-
ry incorporated in this bill. I wish the live-oak
timber to be procured now, for, unless it is, it will
soon be cut down, as the land on which it grows
is very valuable for rearing the article of cotton.
No part of the appropriations are too great. I am
for vesting a liberal discretion in the Secretary of
the Navy and the President, and on their respon-
sibility ; and I think that a specific sum sufficient-
ly great should be appropriated.
Mr. Randolph. — This is one of those questions
on which I did not expect to see any. or if any..
so much warmth as has been manifested by my
friend from South Carolina. I believe it would
have been as well for the gentleman to have dis-
cussed the Army question, or any other question,
in its proper place, and to have confined his re-
mi^rks to the question now before the House.
He tells you that if a specific appropriation is
necessary in one case it is necessary in all ; and
yet, in the next breath he tells you, that the con-
tingencies for repairs are indeterminable ; and yet
he says it is as necessary to specify this appropri-
ation, as it is to specify those for pay, for provis-
ions, or for any other objects. I do not understand
this.
Suppose every public vessel stranded, what be-
comes of the Navy, even with the appropriation
of $100,000 for repairs? The troth is. ik .•
Secretary has made his estimates upon ordc."
circumstances, and the amend meoiprD|X!!>fiir
the gentleman from Maryland will enab;? ii:
Secretary lo provide for any casualty, vdf e
will not enable him to travel out of thesQioi^..
priated; but simply to apply a certain sasi />
ginally contemplated for one object, to aomiier
This is a very different result from ihi^iU
by the gentleman from South CaroliDa.tk'!
had flattered myself, would have bad am >■
spect for the House than to assert, as a maoe-
fact, that which is not fact I assert thai t!):£
feet of the bill will not be to starve the Nar, ,
state, what cannot be denied, that the bead oftt.
department, who is a warm friend of tbe Na^r
has offered us an estimate of the sums re:|ir:.
for the present year, which we are noffaboc.
adopt. The gentleman should be caaticD^;l:
not speak in this way of our making pi'.iia t-
tempts to reduce the Navy by indirect mea^: I
do hope he will in future be more canti);*' l.
speak in a style more becoming tbisHo.K<i(
himself.
The truth is, when we were for redaeiiri*
Army, we disbanded it by an open reiu. ::
and we will do the same thing with respet. :'^
Navy, when we/hink it proper to reduce it F"
m^ part I am willing to support a NaTf.s&iri
it is required by the welfare of iheccastry .
am now for complying with the estimates::^
departments; and when I am for (Joiog tii >^
I to be told that I am for destroying, b? pt :
means, that which the people love ? IdoaSi:'
derstand this language, i will onlfsayib-
voting appropriations, I will vote whailnJ
enough. If tne Executive requires morei^^
necessary, I will vote less than they rtqoit
believe, however, there is no danger of any ^
ecutive demanding too little; and IbaveLCi^
of forcing upon them money thev do not ^
If the gentleman from South Carolina wiis
from his own motives, without criminau£f -^
the public business will go on better thaii'^
hitherto done.
It repains with the gentleman to prore'*^
$50,000 is not sufficient, as well as loprortJ
his sum is sufficient. Until this shall be pr:-
I hope the present sum will be retained ; a:*-
deemed important, that the ideas of the c'^'^
man from Maryland will be adopted.
Mr. HuGER. — I certainly feel a ffrrt'PJ^'f
respect for the members of this House? ^
when we are arguing on political points, wee-
speak of the effects of particular measure- 1:-
of the motives of those who urge them. I n^^'^^
press my surprise at the mode now recornQt-"
by the gentleman from Virginia, in wiJ^i:
confine this discussion to a particular poit'-.^^
believe no gentleman on this floor ha5 mur^ ^*
quently employed his fertilerimagiiiaiion.i5^;J^
lar circumstances, in casting reflections up^e -
ers ; in branding others with the charge a ^'*
muffins, &c. It is not, however, e3[^f*°^^*
that, when he is in and I out, he s'
fended at the remarks made by me.
1201
HISTORY OF CONGRESS.
1202
April, 180S.
Naval Appropriations.
H. OP R.
The ^entlemaa has mistaken me on the score
of specific appropriations. I say let us make a
specific appropriation, and make our officers re-
sponsible for a deviation from it; whereas he is
for making specific appropriations, and for suffer-
ing the excess of all to be applied to the deficien-
cy of one. I believe all the items are small
enough, and that the effect will be to starve the
Navy.
With respect to men in general, I believe that
every Secretary of the Navy, or of any other de-
partment, will retrench the sums he may think
necessary, if those around him say he must reduce
them.
With respect to the Army, I repeat it, I am not
tenacious. I voted lately in favor of reducing it,
and it may, perhaps, be right to reduce it still
lower. We have only reduced it hy one thousand
men less than we had when a bloody war raged
in Europe. This is a mighty saving ! a wonder-
ful evidence of economy !
When I recollect that gentlemen on the other
side are not friendly to a Navy ; when I recollect
to have heard a respectable gentleman from Vir-
ginia say he was not friendly to a Navy, though
he was willing to give way to public opinion, I
am justified in saying that I was afraid that the
intention of gentlemen was to starve the Navy.
Mr. Dana. — I understand the object of the mo-
tion is to appropriate $103,000 instead of $50,000,
the sum at present in the bill. This is warranted
by the estimate of the Secretary of the Navy.
At the commencement of the session, when he
could have no particular views impressed upon
him, he had estimated 1$103,000 as necessary for
the contingent expenses of his department. I ask
if that sum is less necessary now than it was
theu? Then Congress had not given power to
the President to equip thirteen national vessels
for the protection of our merchant vessels in the
Mediterranean and the adjoining seas. We have
had, it is true, a subsequent estimate of $50,000 ;
but has any gentleman explained the grounds of
this change ? If we are to repose confidence in
the gentleman from Maryland, (Mr. S. Smith,)
that the Emperor of Morocco is dissatisfied, shall
we not probably have occasion for the employ-
ment of more ships in the Mediterranean, and
will not the expense of their repairs be increased?
The least number of frigates we shall require
will be four. Now, when we consider the disas-
ters to which all vessels are subject, is it possible
that $50,000 will make them good, particularly
when we consider their remote situation from this
country? The gentleman from Virginia gives
no reason for this change of estimate, but he
charges my friend from South Carolina (Mr,
Huger) with putting his opinion in opposition
to that of the head of the department. If he bad
done so, had he not a right to do it ? But he stands
on higher ground. The Secretary says precisely
what my iriend says.
I make no doubt the ^ntlemen are for appro-
priating what they consider necessary ; but some
gentlemen may think no appropriation necessary.
The contingent fund should be less circum-
scribed than any other article; for when the
squadron is employed in a di^tant service, and
when your agent draws bills for necessary repairs,
will you dishonor them ? Shall they be pro-
tested ? And will you suffer your credit to sink be-
low that of a merchant?
This bill proceeds on the idea of economy ; but
it is an economy only on paper. I consider it as
a waste of public money ; for if it is necessary to
protect commerce, we must have a Navy, and if
we have a Navy, we must pay for it.
I will explain my ideas with respect to specific
and general appropriations. With regard to the
Navj^ and Army, ho man can predict the occur-
lence of calamities, when either is in actual ser-
vice, whether we shall have a battle, and what
shall be the event of it. And though it be admit-
ted that there may be some estimate of the cost
of a given force, yet when this expense is applied
to particular objects, it is difficult to ascertain the
precise sum required for each ; ti)e true way,
therefore, is, in a state of war, to give a general
sum. and suffer the specific appropriations made
by Congress to designate the general ideas of the
Government. But then it is necessary to have a
contingent fund for each article. Now, I would
prefer a specific sum for a general contingent
fund, to one for each specific article.
I object, however, to this item, inasmuch as it
is not enough to cover the objects contemplated.
Four frigates will be the smallest possible num-
ber required — more may be wanted, if danger is
apprehended from Algiers and Morocco, f rest,
therefore, upon the belief that the Secretary of the
Navy, when unbiassed by the opinions oi others,
stated this sum of $103,000 as necessary.
The yeas and nays were then taken on agree-
ing to the report of the Committee of the Whole,
to insert $50,000. which was carried — yeas 39,
nays 24, as follows:
Yeas — John Archer, John Bacon, Theodoras Bailey,
Walter Bowie, Robert Brown, William Butler, Thomas
Claiborne, Matthew Clay, John Condit, Richard Cutts,
John Dawson, William Dickson, Ebenezer Elmer,
Edwin Gray, John A. Hanna, Joseph Heister, Jamee
Holland, David Holmes, Michael Leib, John Milledge,
Samuel L. Mitchill, Thomas Moore, Thomas Newton,
jr., John Randolph, jr., John Smilie, Israel Smith, John
Smith, of New York, Samuel Smith, Henry Southard,
Richard Stanford, Joseph Stanton, jr., John Stew&rt,
John Taliaferro, jr., David Thomas, Philip R. Thomp-.
son, Abram Trigg, John Trigg, John P. Van Ness, and
Isaac Van Home.
Nats — James A. Bayard, Thomas Boude, Samuel
W. Dana, John Davenport, John Dennis, Abiel Foster,
Calvin Goddard, Roger Griswold, Joseph Hemphill,
Archibald Henderson, Benjamin Huger, Thomas
Lowndes, Lewis R. Morris, Thomas Morris, Thomas
Plater, Nathan Read, John Cotton Smith,'Jo0iah Smith,
John Stanley, John Stratton, Samuel Tenney, George
B. Upham, Peleg Wadsworth, and Lemuel Williams.
Mr. HcGER moved to strikeout $195,000, appro-
priated for the purchase of timber, dbc. with the
view of inserting a larger sum, originally propos-
ed by the Secretary of the Navy.
Tne question was taken on agreeing to the re-
port to msert $195,000, and carried — yeas 40.
1203
HISTORY OF CONGRESS.
1204
H. OP R.
Compensation to Collectors,
April, 18Q2.
The next appropriation applied $50,000 to navy
docks.
Mr. HuGERand Mr. Dana objected to this sum,
and proposed the application of $100,000.
The report of the Committee to insert $50,000
was carried without a division.
Mr. S. Smith moved a new section authoriz-
ing the Secretary of the Navy, with the approba-
tion of the President, to apply any excess of the
appropriation, beyond the expenditure of the spe-
cific sums appropriated, to the repair of vessels in
actual service, if the exigency of^the service shall
require it ; except the sums appropriated for pur-
chase, <Scc., of timber for seventy-fours and for the
improvement of navy yards and docks. The mo-
tion was lost.
The bill was then ordered to a third reading
on Monday.
Monday, April 19.
An engrossed bill making an appropriation for
the support of the Navy of the United States, for
the year one thousand eight hundred and two, was
read the third time, and passed.
NAVY PENSIONS.
An engrossed bill for the relief of widows and
orphans of certain persons who have died, or may
hereafter die, in the Naval service of the United
States, was read the third time ; and, on the ques-
tion that the same do pass, it was resolved in the
affirmative — yeas 34, nays 29 as follows :
Yeas — John Archer, James A. Bayard, Thomas
Boude, Walter Bowie, Manasseh Cutler, John Daven-
port, John Dawson, John Dennis, Ebenezer Elmer,
William Eustis, Abiel Foster, Calvin Goddard, Roger
Griswold, Seth Hastings, Daniel Heister, William
Helms, Archibald Henderson, Benjamin Huger, Lewis
R. Morris, Thomas Newton, jr., Thomas Plater, Na-
than Read, William Shepard, John Smith of Virginia,
Josiah Smith, Samuel Smith, John Stanley, Joseph
Stanton, jr., John Stratton, Benjamin Tallmadge, Sam-
uel Tenney, George B. Upham, Peleg Wadsworth, and
Lemuel Williams.
Nats — Willis Aston, John Bacon, Theodorus Bailey,
Robert Brown, William Butler, Mathew Clay, John
Condit, John Fowler, Edwin Gray, Joseph Heister,
James Holland, George Jackson, Michael Leib, Sam-
uel L. Mitchill, Thomas Moore, James Mott, Anthony
New, Joseph H. Nicholson, John Smilie, Israel Smith,
John Smith of New York, Henry Southard, Richard
Stanford, John Taliaferro, jr., Philip R. Thompson,
Abram Trigg, John Trigg, John P. Van Ness, and Rob-
ert Williams.
COMPENSATION OF COLLECTORS.
The House went into Committee of the Whole
on the bill to amend the act fixing the compensa-
tion of officers employed in the collection of du-
ties on imposts and tonnage.
This bill allocs certain compensations to col-
lectors of ports, provided the clear annual receipt
does not exceed 95,000. A motion was made to
strike out $5,000, for the purpose of introducing
«4,000. ^
It was contended that this latter sum was suffi-
cient compensation to any collector ; that it great-
Iv exceeded most of the compensations allowed to
tne Federal officers ; and that as money was ap-
preciating, it became necessary to reduce the sal-
aries of officers generally.
In reply, it was observed that very few collect-
ors would receive so large a sum as $5.000— none
other than those of New York, Philadelphia, Bal-
timore, and perhaps Charleston ; that the respon-
sibility attached to these officers was greater than
that attached to any other, as in some instances
two millions of dollars passed through their hands;
that the temptation to violate duty was propor-
tionably great; and that, from these considera-
tions, it became the Government to affi>rd them
a liberal compensation; and that the sum was
considerably below that heretofore allowed.
The question was taken on striking oat $5,000,
and lost — yeas 26.
Mr. Stanley moved to strike out that part of
the bill which deducted from the compensations
made to the collectors of Newbern and Edenton,
the sum of $250, heretofore allowed beyond their
fees.
For this motion he assigned several reasons:
among which were the inadequacy of the com-
pensations, viz: about $1,600 to the duties per-
tormed, which were,, notwithstanding the small
amount of duties, very burdensome, owing to the
smallness of the cargoes imported, and theirs be-
ing greatly inferior to the compensations allowed
to the collectors of Wilmington and Petersburg.
Mr. S. Smith informed the Committee that the
principle on which the several compensations had
been graduated was, that*when the gross emolu-
ments exceed $2,000, the salary heretofore allow-
ed by law, in addition to the emoluments, should
be withdrawn. This was the fact in relation to
the ports of Newbern and Edenton ; and as the
duties in each of these ports did not exceed $45,000;
the compensation seemed adequate ; he was, how-
ever, far from being tenacious, and would have
little objection to a vote of the House which should
increase it. Motion lost — yeas 25.
The Committee rose, and reported the bill with-
out amendment.
Mr. SouTHA.Ro renewed the motion to strike
out $5,000, for the purpose of insertins^ $4,000,
(the same motion made in Committee,) and as-
signed substantially the same reasons above stated.
Messrs. Stanley, Bacon, and Smilie, delivered
a few observations for, and Mr. Huoer against,
the motion, which was taken by yeas and nays,
on the call of Mr. Southaro, and lost — yeas 31,
nays 40, as follows :
Yeas — John Bacon, Phanuel Bishop, llobert Brown^
William Butler, Matthew Clay, Richard Cutts, John
Davenport, Lucas Elmendorf, Ebenezer Elmer, John
Fowler, John A. Hanna, Joseph Heister, James Hol-
land, David Holmes, George Jackson, Michael Leib,
Thomas Moore, Anthony New, John Smilie, John
Smith of Virginia, Josiah Smith, Henry Southonl,
Richard Stanford, John Stanley, Joseph Stanton, jan^
John Taliaferro, jun., Benja^pin Tallmadge, David
Thomas, Abram Tiigg, John^ Trigg, and Robert Wfl-
hams.
1205
HISTORY OF CONGRESS.
1206
April. 1802.
Judiciary System.
H. OF R.
Nats — Willie Alston, John Archer, TheodoniB Bai-
ley, James A. Bayard, Thomas Boude, John Condit,
Manasseh Cutler, John Dawson, John Dennis, Wil-
liam Dickson, William Eustis, Abiel Foster, Calvin
Goddard, Edwin Gray, Roger Griswold, Daniel Heis-
ter, Archibald Henderson, Benjamin Huger, Thomas
Lowndes, Samuel L. Mitchill, Lewis R. Morris, Tho-
mas Morris, James Mott, Thomas Newton, jun., Joseph
H. Nicholson, Thomas Plater, Nathan Read, William
Shepard, Israel Smith, John Smith of New York, Sam-
uel Smith, John Stratton, Samuel Tennej, Philip R.
Thompson, George B. Upham, Philip Van Cortlandt,
John P. Van Ness, Peleg Wadsworth, Lemuel Wil-
liams, and Henry Woods.
Mr. Goddard moved an aDoeDdment providing
that DO collector should be allowed a greater sum
for clerk hire than the amount of his own emolu-
ments. Lost — yeas 28.
The bill was then ordered to be engrossed for a
third reading.
JUDICIARY SYSTEM.
The House went into a Committee of the
Whole, on the bill to amend the Judicial system
of the United States.
The first section being under consideration, as
follows :
** That, from and after the passing of this act, the
Supreme Court of the United States shall be holden by
the justices thereof, or any four of them, at the City of
Washington, and shall have one session in each and
every year, to commence on the first Monday of Feb-
ruary, annually, and that, if four of the said justices
shall not attend within ten days after the time hereby
appointed for the commencement of the said session,
the business of the said court shall be continued over
till the next stated session thereof: Provided always.
That any one or more of the said justices attending as
aforesaid, shall have power to make all necessary or-
ders touching any suit, action, writ of error, process,
pleadings, or proceedings, returned to the said court or
depending therein, preparatory to the hearing, trial, or
decision of such action, suit, appeal, writ of error, pro-
cess, pleadings, or proceeding^.
Mr. Bayard moved to strike out '^one session,"
and insert '' two sessions."
Mr. B. said, he did not know any necessity why
the Supreme Court should not be allowed to sit
but once a year. We know that, by the system of
17S9« there were two sessions; and that, under every
modification of that system there have been two
sessions. We know that this court has original
jurisdiction in many cases, and that this arrange-
ment will subject suitors to much delay. He
knew not from what analogy this system is deriv-
ed. He knew that the inevitable delays of law
are sufficient of themselves, and he should think
that system improper which multiplies the delays
and vexations to which every system is inevita-
bly subject. It will be recollected that it is im-
possible to bring a suit to trial the first term. He
observed, by this bill, that a certain mongrel court
is contemplated, to consist of one justice, vested
with power to take preliminary steps without au-
thority to take final ones. When the justices of
the Supreme Court had to perform more labori-
ous duties than they will have to perform under
this system, they sat twice a year. They then
went from one end of the Union to the other;
whereas they are now to be confined to two
States. He Knew not why suitors are now to be
deprived of the advantages they then possessed.
He therefore hoped the provisions of the former
system would be agreed to.
Mr. Ij^icHOLBON. — I hope the amendment will
not prevail. When the gentleman observed that
inconveniences would exist under the provisions
of this bill, he ought to have pointed them out.
For my part I see none. In last June term, there
were only eight cases before the Supreme Court.
Now, if it is necessary to call the justices of the
Supreme Court together twice a year, from all
rirts of the Union^ to try eight cases, I confess
am at a loss to assign the reason for the neces-
sity. Suppose the number of cases should double,
for it is probable they will vary from a larger to a
lesser number? Suppose, then, they should en-
large to double the number, will it not be infinite-
ly more to the ease of the judges to stay four
weeks, once a year, than to stay two weeks twice
a year? Nor do I know that any delay will hap-
pen in the administration of justice. For one
judge is to remain here in the recess to receive
pleas, grant rules, dec, and, if any original actions
are commenced, they are to take test from the
first of August, equally with the first of February,
according to the time of the year when they are
brought. The pleadings may be filed, and all the
preliminary steps taken in August, as well as in
February. AH the necessary orders may be given,
as well in the recess as during the sittings of the
court. It is barely possible, in some cases, that a
delay of six months may happen, and that is all ;
though I do not know that ever that will occur.
Mr. Bayard. — I thought I had pointed out an
inconvenience, the greatest that can attend the
administration of justice ; I mean a delay attend-
ing the trial of causes; equal nearly to a denial of
justice. A cause can rarely be brought on the
first term, and then there will be no possibility of
a trial for a year, whereas if there are two terms,
it may be decided upon in six months. The bill
says there is no difference between six and twelve
months' delay. What temptation does this pre^
sent to counsel ? It is known that appeals are
frequently made for the purpose of delay ; and if
the artifice, delay, can be accomplished for a term,
they will gain an entire year. Is this no- advan-
tage to a man who has the money of another in
his hands, which he does not want to pay ?
What is the answer of the gentleman from
Maryland ? The convenience of the judges will
be promoted by this arrangement ! This is a laud-
able spirit, and I am glad to see it come from gen-
tlemen on the other side of the House. But, in
my opinion, the justices ought to regard the con-
venience of the community; and the single ques-
tion is, whether he will consult the convenience
of the justices, or that of the community ? I
would wish to consult both ; but when it inter-
feres, the convenience of the judges must give
way to that of the community.
The gentleman from Maryland has mentioned
1207
HISTORY OF CONGRESS.
1208
H* OP R.
Judiciary System.
April, 1802.
the paucity of causes before the Supreme Court.
But I do not know that a paucity of causes at the
end of a term is an evidence of a little business^
I do know, from attending the court, that business
was left undone at one term that required one
week, and at the last term that required two
weeks to complete. Besides, the causes decided,
though few^ are of vast importance. Que cause
was determined the last term to the amount of
$180,000. The delay of such a cause might ruin
one man, or make the fortune of another.
I do not know that this amendment will inter-
fere with the other provisions of the bill, and I
can therefore see no reason against adopting it.
Mr. Nicholson. — I said there was a possibility
of a delay of six months being incurred by this
bill. But I do not consider it as so great a hard-
ship as the gentleman does. I do not know the
regulations in the Supreme Court for the contin-
uance of causes. But I know that, in Maryland,
a cause on appeal may rest for two years. Nor do
I think it correct to hurry on a suitor to trial the
first term. Besides, in the Supreme Court, under
the provisions of this bill, there will be no neces-
sity imposed on the suitor to attend at the August
term, the counsel can make the necessary arrange-
ments. I do not speak with absolute certainty
when I say that there has been no original cause
brought in the Supreme Court. In the State
courts few causes are tried the first year; one
year, therefore, can be considered as but a small
delay ; and, in a case where $180,000 is depend-
ing, 1 will asl^ if the court would order a party un-
prepared, to go to trial the first term ?
Mr. Gribwolo. — We probably judge of the rea-
sonableness or unreasonableness of delay by the
practice of the States from which we severally
come. In the State I come from, it has been
thought unnecessary to allow one term for delay
in the case of writs of error. Because the errors
being of record, the defendant always knows the
reason on which the appeal is founded. The same
Principle applies to the courts of the United
Itates. The arrangements of the bill generally
produce a postponement of twelve, ana at any
rate, of six months. In some cases this will be a
• great hardship, and in others it may ruin the par-
ties. I therefore think it important that the Su-
preme Court should sit twice a year. On appeals
there can be no necessity for delay, as no new
facts are to be tried, and all that is required is a
decision on points ojf law.
Mr. Nicholson said, he did not pretend to know
the course of proceeding in the courts of Connec-
ticut ; but in no court, with whose proceedings he
was acquainted, did he know the reasons of error
assigned on the record.
Mr. Dennis. — It appears to me, from the pro-
visions of the bill, the Supreme Court may in future
be more properly called a court of injustice than
a court of justice. I have always thought the de-
lavs in the courts of Maryland a sreat grievance,
wnere, in the case of a simple undisputed bond, a
delay may take place of four years. I feel, there-
fore, no desire to accommodate the system of the
United States to that of Maryland ; out rather to
conform the system of Maryland to that of the
United States. I know that the disposition of the
defendant is of itself sufficient to produce delay,
without any legal aid. I will challenge my col-
league, or any other man, to show me a court of
appeal that sits but once a year. In such courts
it nad been usual to assign errors the first time,
and try the next. Grentlemen should recollect
that, in this District, an appeal lies in all cases
above one hundred dollars. The delay in the
Supreme Court will certainly encourage appeals,
which may be excellent for the counsellors, how-
ever unjust or oppressive to the commuiuty.
Mr. Nicholson. — I will only say, that if it has
heretofore been the practice of the Supreme Coart
to assign errors the first term, this bill does oot
abridge that power. They may be stated the first
term, and the only delay that can occur will be
for one year instead of six months.
Mr. Elmenoorf. — It appears to me that the ar-
guments of gentlemen do not apply to the Su-
preme Court. It is not pretended that this court
is calculated for the trial of original causes, hot
barely for the correction of errors. And, it seems
to me, that more delay will be efiected by having
two terms a year than by having one ; for the num-
ber of causes actually tried will depend much
more on the length than the frequency of terms.
If there shall be but one sitting a year the justices
will consider themselves under an obligation to
try all the causes before them. It will also be
recollected that delays in this court, under its pre-
sent organization, are only to be affected by rules
of court and not by our laws.
I wish to know, whether the causes that are
likely to arise will not come up from every part of
the Union ; not merely from Maryland, as might
be inferred from the remarks of one gentleman?
I would ask, if this be the case, whether the great-
est of all possible inconveniences will not result
from the frequency of terms ? When the counsel
are obliged to come on two or three times a year
instead of once, will not the expense to the suitor
be greatly increased ?
It is decidedly my opinion that the expediting
of business will principally depend upon the
length of the term and the urgency with which
the justices push forward the trial of causes.
In the State of New York, the court of last re-
sort sits but once a year ; and no inconvenience
has been experienced. They sit during the ses-
sion of the Legislature, and no cause is ever post-
poned without a sufficient cause for the delay. If
then, we consider that by this bill the inconveni-
ence of a frequent attendance at court is removed,
and that the certainty of a trial, perhaps at the
first term, is insured, in my opinion we must con-
clude that this plan is better calculated to exjie-
dite business, and to accomplish the due adminis-
tration of justice, than the having more frequent
sessions, sessions which will be shorter, and ia
which business cannot be so well done.
Mr. Henderson. — Whatever reasons may hare
influenced gentlemen in bringing forward this bill,
I did not expect to hear assigned among them
that the frequency of terms is calculated to delay
109
HISTORY OF CONGRESS.
1210
RiL, 1802.
Judiciary System.
H.opR.
i administration of justice. If this amendment
lot acceded to, the meWtable effect will be that
•eafter the docket will be crowded, however it
y have been heretofore. It will be recollected
X the court is bound to exercise a legal discre-
1, and whenever a party desires a postpone-
nt, the court must decide according to this dis-
tioD ; and I beg to know whether there will
exist the same reasons for delay when there is
one term a year, that exist when there are two?
1st not the court be governed by the same rules
:)oth cases? If so, the chance of getting a cause
id is not in proportion to the paucity of terms.
The gentleman from New York thinks the pau-
r of terms will prevent delay. But, how can
i be ? May not suitors in all cases, for sums
ve $20,000, appeal; and may they not continue
ir suits from term to term? So also as lo writs
error which may be brought as to facts as well
aw; this will operate as a complete superse-
s. It seems to me wrong to institute courts
the administration of justice, and only gi^e
citizen an access to them once a year. And
►ut one term a year, why not, on the same prin-
ce, have only one term in two or three years?
2 same arguments urged in favor of the former
:ht, with equal force, be applied to the latter,
therefore hoped such inconclusive arguments
lid not prevail.
Ir. Elmendorp. — My ideas on this subject
^, perhaps, ditfer from those of other gentle-
1, trom the different practices that prevail in
erent States. It is a fact that, in the State of
w York, an appeal cannot be made barely for
purpose of delay. There a writ of error can-
be obtained unless two counsellors, after ex-
nation of the record, declare that, in their
lion, there is a material error. And if you
£6 provision^ by law, that no removal shall, on
allegation of error, for the mere purpose of de-
take place, will not the court be bound by it?
s is the only argument I have heard on the
?r side, and I have answered it by stating the
itice in the State of New York.
Ir. T. Morris said that, when his collea^e
stated that the Court of Appeals in New
k sits but once a year, and that no inconveni-
» had been experienced, he ought to have added
: the court sits as a branch of the Legislature
lit three months. It follows that inconveni-
e may not occur there, though it should else-
ire Having heard no reason for this innova-
,he should vote for the amendment,
[r. R. Williams. — In addition to the reasons
ady assigned, I will add that this amendment,
iopted, will derange the whole system. It is
iible that, on this plan, there may be delay. I
add that this amendment, if adopted will de-
^e the whole system. It is possible that, on
plan, there may be delays, as it is impossible
rganize any system without delay. But I be-
e that, in legislating, we ou^ht to regard the
rests of the whole people, f believe that the
ses in the Supreme Court, compared with those
he circuit courts, are very few. If, therefore,
plan insures the aolding two circuit courts an-;
nually, we ought of preference to suffer a slight
inconvenience to exist in the Supreme Court. Ab
to delay, it is not, in fi;eneral, to be ascribed to the
badness of the laws, but to the ingenuity of coun-
sel. There are now but eight causes on the
docket of the Supreme Court. Gentlemen say
they will increase. If they do, we will have no
objection to give that court two sessions. But I
have a different opinion. I believe this system
will have a different effect, and that it will not
increase the present monstrous mass of business !
It often happens that reasons for postponement
arise from the parties not having time to bring
forward their evidence. This cannot occur when
the terms are at the distance of a year from each
other.
Mr. Bayard replied to Mr. Williams, recapit-
ulated his preceding remarks, and concluded by
observing tnat as the old system which gave two
sessions to the Supreme Court, had not Men com-
plained of either by lawyer or suitors, it appeared
to him that the present object was to make Fed-
eral justice so inconvenient that suitors would be
obliged to abandon the courts of the United States.
He asked, if the effect would not be to deteriorate
the system, so as to make it odious to the people?
Mr. Dana delivered his sentiments in favor of
the amendtnent.
Mr. HoLLANo. — Gentlemen say, a delay of jus-
tice will be a denial of it, and immediately after-
ward add, that the demands for which suits are
instituted in the Supreme Court, are very large*
I take it for granted that where the demand is
great, the delay should be proportionably long.
On this principle we have practised in North Car-
olina. The great distance, too, of most of the cit-
izens from the seat of Government, is an argu-
ment for the paucity of the terms, from the great
trouble imposed upon the counsel and suitors.
The fi^entleman from Delaware had lately told us
that the convenience of the judges was to be con-
sulted; but now he says, their convenience is not
to be regarded. So tnat. let us form the bill as
.we please, gentlemen will not be satisfied with it
in any shape. I therefore consider th6 motion
made as barely intended to defeat the whole bill.
Mr. Elmendorf observed that the term of the
Supreme Court was so fixed as to occur during
the session of Congress. He observed that a sys-
tem of justice ought to be so constructed as to be
convenient to the United States; and so that the
assistance of counsel could be obtained at the
cheapest rate, and who were acquainted with the
parties. This will be the case under the new sys-
tem. This argument in favor of it is invincible ;
it has not been answered. There are gentlemen
of the law from most of the States, who are mem-
bers of Congress, which will greatly contribute to
the convenience of suitors in the most remote
States, and particularly as the presence of suitors
is not necessary in the decision of questions of law
on appeals.
As to the opposition made to this bill, do not
gentlemen see who oppose it? They are those
who reside in or near this place---gentlemen
of the bar, who will monopolize the whole busi*
1211
HISTORY OF CONGRESS.
1212
H. opR.
Judiciary System.
Apriu 1802.
ness of the courts, and who naturally think the
more the terms the better for them.
Mr. Smilie believed gentlemen forgot that the
session was drawing near to a clo^e. He hoped
the question would be taken without further
debate.
The question was then taken on Mr. BAYARn^e
amendment, and lost — ayes 26.
Mr. Batard moved to strike out the third sec-
tion, which directs that all suits returnable or con-
tinued in the Supreme Court from December
term to June term, shall be continued over to
August term.
He considered this provision as predicated on
injustice. It operated to continue the suits for
more than a year. This is the effect of this mighty
potchery of legislation ! Where suitors are enti-
tled to trial in six months, they are denied even a
hearing for fourteen months. He believed this was
unprecedented in this or any other country. Will
gentlemen say why these causes cannot be decided
m June ? As the justices expected to meet, as the
suitors expected to have their causes tried in June
next, if hereafter we are to have only one session,
why interpose by a new repealing law, to affect a
law which is not at present to be repealed till the
first of July ?
The question was then taken on Mr. Bayaru's
motion to strike out, and lost-^ayes 23.
Tuesday, April 20.
Mr. Bacon, from the committee appointed, on
the sixteenth instant, presented a bill relating to
the claim of Comfort Sands and others; which
was read the first time: Whereupon, a motion
was made, and the question beinc^ put, that all
further proceeding in the said bill be postponed
until the third Monday in November next, it was
resolved in the affirmative.
A Message was received from the President
OF the United States, as follows:
Gentlemen of the SencUe, and
of tilt Houee of Representatives :
The object of the enclosed letter, from the Directer
of the Mint, at Philadelphia, being within Legislative
competence only, I transmit it to both Houses of Con-
gress. TH. JEFFERSON.
April 20, 1802.
The said Message, and letter therewith trans-
mitted, were read, and ordered to be referred to
the Committee of ^he Whole House to whom
was committed, on the second instant, the bill to
repeal so much of the acts, the one entitled ^^An
act establishing a Mint, and regulating the coins
of the United States;" the other an act, entitled
"An'act supplementary to the act establishing a
Mint; and regulating the coins of the United
States," as relate to the establishment of the
Mint.
Another Message was received from the Pres-
ident OF tbe United States, as follows :
Gentlemen of the House of Representatives :
I transmit you a report from the Secretary of State,
with the information desired by ihe House of Repre-
sentatives, of the eighth of January, relatire to certun
spoliations, and other proceedings therein referred to*
TH. JEFFERSON.
Apkil 20, 1802.
The said Message was read, and, together with
the papers referred to therein, ordered to lie on
the table.
A message from the Senate, informed the House
that the Senate have passed the bill, entitled
"An act further to alter and establish certain post
roads." with several amendments ; to which they
desire the concurrence of this House.
Mr. Nicholson, from the Committee of Ways
and Means, presented a bill making appropriatiobs
for the Military Establishment of the United
States, in the year one thousand eight hundred
and two ; which was read twice, and committed
to a Committee of the whole House to-morrow.
Mr. Davis, from the committee to whom was
committed, on the fifteenth instant, the amend-
ments proposed by the Senate to the bill, entitled
"An act in addition to an ^ct, entitled *An act in
addition to an act regulating the grants of land
appropriated for military services, and for the So-
ciety of the United Brethren for propagating the
Gospel among the Heathen,' '' reported that the
committee had had the said amendments under
consideration, and directed him to report to the
House their agreement to the same.
An engrossed bill amending a^i act fixing the
compensations of officers employed in the collec-
tion of duties on imports and tonnage, was read
the third time, and on the question, shall the bill
pass? Mr. Stanley, considering the compensa-
tion of $5,000 too high for any collector, and the
compensations in other respects as unequal, mov-
ed tne recommitment of the bill. Motion lost —
yeas 21.
The bill then passed without a division.
The House a^ain went into Committee of tbe
Whole on the bill to amend the Judicial system of
the United States.
Mr. Davis moved to amend the fourth section,
by constituting an additional circuit, to be called
the seventh circuit, composed of the States of
Kentucky and Tennessee, his object being that
the circuit court therein should be composed of
the district judges of Kentucky and Tennessee.
Motion carried — yeas 40.
Other amendments were made affecting the de-
tails of the bill.
Ordered, That the said bill, with the amend-
ments, do lie on the table.
Wednesday, April 21.
The House proceeded to consider the amend-
. ments proposed by the Senate to the bill, entitled
"An act in addition to an act, entitled ^An act in
addition to an act regulating the grants of land
appropriated for military services, and for the
Society of the United Brethren for propa^ting
the Gospel among the Heathen,' " to which the
select committee, to whom they were referred, re-
ported their agreement on the twentieth instant :
Whereupon,
1213
HISTORY OF CONGRESS.
1214
April, 1802.
Judiciary System.
H. opR.
Resolvedj That this House doth concur with
the committee in their agreement to the amend-
ments of the Senate to the said bill.
Ordered, That the Committee of the whole
House, to whom was referred, on the fifth instant,
a motion, in the form of a resolution of the House,
" respecting the registry of ships or vessels, two-
thirds of which shall have been, or may be rebuilt
within the 'United States, of American materials,
and belonging wholly to a citizen or citizens of
the Uuited States," be discharged therefrom ; and
that the further consideration of the said motion
be postponed until the third Monday in Novem-
ber next.
Mr. Batard moved the taking up for consider-
ation, a motion made yesterday by him for the
adjournment of the two Houses on Monday next.
The question was put on taking it up, and lost —
ayes 33, noes 39. .
Mr. Van Ness moved the order of the day, on
the going into the Committee of the Whole, on a
resolution some time since laid by him on the
table, respecting the registering of vessels, dec.
Messrs. Hugeb and Griswolo opposed the
takipg up this resolution, from the lateness of the
session, and moved a postponement'of it to the
fourth Monday in November. Postponement car-
ried—ayes 61.
JUDICIARY SYSTEM.
The House then took up the amendment of the
Committee of the Whole, reported yesterday, to
the bill <^ to amend the judicial system of the Uni-
ted States."
The first amendment was as follows : "And so
much of the act entitled ^An act to establish the
judicial courts of the United States' passed Sep-
tember 24, 1789, as provides for the holding a ses-
sion of the Supreme Court on the first Monday
of August annually, is herebv repealed."
On s^reeing to this amenament,
Mr. Bayard called for the yeas and nays. He
said it wa.s not his intention to consume the time
of the House, by repeating the arguments which
had been made, without oeing answered in the
Committee of the Whole. He would barely ob-
serve that the giving to the Supreme Court one
session instead of two, was in a great measure a
denial of justice to suitors, and would operate
with peculiar injustice on the present suitors.
Mr. MoTT declared himself against the amend-
ment, inasmuch as it betrayed great inconsistency
in the acts of the Legislature. He believed the
law lately passed, respecting the Judiciary sys-
tem established last session, was risht. That law
restored the system of 1789, under which two
sessions of the Supreme Court were annually
held. The repeal, not operating till the first day
of July, did not affect the ensuing session in June.
If the repealing law was right, we must now be
wrong. For this reason, and for others, Mr. M.
declared himself against the amendment.
The yeas and nays were then taken on the
amendment, and carried — yeas 44, nays 29, as
follows :
Yeas — Willis Alston, John Archer, John Bacon,
Theodorus Bailey, Phanuel Bishop, Robert Brown,
William Butler, Matthew Clay, John Clopton, John
Condit, Richard Cutts, William DicksoA, Lucas £1-
mendorf, Ebenezer Elmer, Wm. Eustis, John Fowler,
Edwin Gray, John A. Hanna, Daniel Heister, Joseph
Heister, William Helms, James Holland, George Jack-
son, Michael Leib, Samuel L. Mitchill, Anthony New,
Joseph H. Nicholson, John Smilie, Israel Smith, John
SmiUi, of New York, John Smith, of Virginia, Samuel
Smith, Henry Southard, Richard Stanford, Joseph
Stanton, jr., John Stewart, John Taliaferro, jr., David
Thomas, Philip R. Thompson, Abram Tr^g, John
Trigg, PhUip Van Cortlandt, John P. Van Ness, and
Robert Williams.
Nats— James A. Bayard, John Campbell, Manas-
seh Cutler, John Davenport, Thomas T. Davis, John
Dennis, Abiel Foster, Calvin Goddard, Roger Griswold,
Seth Hastings, Archibald Henderson, Benjamin Hu-
ger, Thomas Lowndes, Lewis R. Morris, Thomas Mor-
ris, James Mott, Thomas Plater, Nathan Read, Wil-
liam Shepard, Josiah Smith, John Stanley, John Strat-
ton, Benjamin Tallmadge, Samuel Tenney, Thomas
Tillinghast, George B. Upham, Peleg Wadsworth,
Lemuel Williams, and Henry Woods.
The second amendment established an addi-
tional circuit, to be called the seventh circuit,
consisting of Kentucky and Tennessee.
Mr. Alston said he should be impelled to vote
against this amendment, unless it should be shown
that it would not materially interfere with the
subsequent details of the bill, which, he was at
present inclined to believe would be the case.
Mr. Davis said it was far from his intention
unnecessarily to consume the time of the House.
He begged, however, that the arguments which
he had yesterday urged in committee would be
attendea to by gentlemen. He begged ffentlemen
to respect the rights of Kentucky and Tennessee,
which were equal to those of the other States, all
of whom, excepting Maine, were allowed the
benefit of circuit courts. The only object of the
amendment was to unite the labors- of the district
judges of Kentucky and Tennessee, without in-
curring the least additional expense. He defied
^entieftien to assign any reasons against extend-
ing this benefit to Kentucky and Tennessee. Gen-
tlemen may assign certain motives, but they can-
not assign arguments for the refusal.
Mr. Fowler said he had never heard of the
existence of any complaints respecting the sys-
tem, as it would stand, without the amendment of
his colleague. He believed it was perfectly sat-
isfactory. As to the motives to which his col-
league alluded, he knew of none himself, other
than those which were connected with the gene-
ral good. If his colleague knew of any other, he
supposed he would name them.
Mr. Thompson stated the contents of a letter
received by him from Judge Innes, stating the
small number of suits depending in the district of
Tennessee, and stating tne great distance which
the judges would have to travel in case of a cir-
cuit being established, from which Mr. T. inferred
the uselessness of such a court.
Mr. Davis replied, and observed, that he knew
that a majority, whether right or wrong, will de-
cide as they please ; as to the motives to which
1215
HISTORY OF CONGRESS.
1216
H. OP R.
Judiciary System — Post Office Bill,
April, 1803.
he had alluded, gentlemen could be at no loss to
understand (lim; he believed that another session
of Congress would unfold those motives.
The question was then taken on the amend-
ment, and lost — ayes 34, noes 42.
Mr. Batard moved to recommit to a select
committee the sixth section, which is as follows:
** That when the judges of any circuit court upon
the final hearing of a cause, or of a plea to the juris-
diction of the court, shall be divided in opinion, the
Supreme Court upon being notified by the circuit court
thereof, shall, at their session to be held next thereafter,
assign one other of the justices of the Supreme Court
whose duty it shall be to attend accordingly ; and upon
a second hearing of the said cause the judgment or de-
cree shall be entered up in conformity to the opinion
of the court, to be composed of the justice so assigned
for the division thereof, and of the judges of the said
circuit court : Provided, nevertheless , That all ques-
tions arising in criminal cases and submitted to the
court, shall, in c€ise the court shall be divided in opin-
ion, be considered as adjudged in favor of the prisoner;
and if the court shall be divided upon the final judg-
ment or sentence, judgment shall be entered up in fa-
vor of the prisoner, and he or she forthwith dis-
charged."
Mr. Bayard stated several points wherein he
conceived the section defective ; others were sta-
ted by Mr. Griswold.
The recommitment was urged by Messrs. Bay-
ard, Griswold, R. Williams, and Nicholson ;
and opposed by Messrs. Elmendorf, S. Smith,
and Smilib.
The recommitment was carried — ayes 45; and
a committee immediately appointed, consisting of
Messrs. Bayard, Nicholson, and R. Williams.
At the close of the sitting, Mr. Bayard report-
ed the following substitute for the sixth section :
"That whenever -any question shall occur before a
circuit court, upon which the opinions of the judges
shall be opposed,- the point upon which the disagree-
ment shall happen, shall, during the same term,
upon the request of either party, or their counsel, be
stated under the direction of the judges, and certified
under the seal of the court, to the Supreme Court, at
their next session to be held thereafter ; and shall, by
the said court, be finally decided. And the decision of
the Supreme Court, and their order in the premises,
shall be remitted to the circuit court, and be there
entered of record, and shall have effect according to
the nature of the said judgment and order : Provided,
That nothing herein contained shall prevent the cause
from proceeding, if, in the opinion of the court, further
proceedings can be had without prejudice to the merits :
And provided also. That imprisonment shall not be
allowed nor punishments in any case be inflicted,
where the judges of the said court are divided in (pin-
ion upon the question touching the said imprisonme*nt
or punishment."
Consideration postponed till to-morrow.
POST OFFICE BILL.
The House took up the amendments of the
Senate to the Post Office bill.
Among these amendments wai$ one iostructing
the Postmaster General to establish, if necessary,
at the public expense, a line of stages for the car-
rying of the mail. On this amendment an inter-
esting expression of opinion took place on the pro-
priety and policy of extending the accommoda-
tions of the Post Office Department.
Mr. Alston moved to qualify the amendment
by a restriction, that the measures contemplated
in the amendment should be authorized only so
far as the funds of the Post Office pepartment
would admit. Motion lost.
Mr. S. Smith and Mr. Huqer supported the
amendment.
Mr. Griswold and Mr. Eustis opposed the
amendment on the ground of the expense that
would arise to the public, and from the present
season being premature.
Mr. MiLLEDGB contested the remark of Mr.
Griswold in relation to expense. To gain informa-
tion, Mr. M. moved to refer the amend menis of
the Senate, undecided upon, to a select committee.
Mr. Elmendorf spoke for, and Mr. Holland
against the commitment. Motion to commit
lost — ayes 18.
Messrs. Holland, Elmer, and Elmendorf,
spoke against, and Mr. Milledge for a^eeing to
the amendment, which, on the question being
taken, was lost — ayes 20.
Mr. HuGER moved an amendment, authorizing
the Postmaster General to allow hereafter one-
third more for the conveyance of the mail in close
carnages, than is now allowed for the conveyance
in chairs, or on horses.
Mr. Shepard spoke for, and Mr. Holland
against this motion. Lost — ayes 27, noes 34.
Thursday, April 22.
Mr. Giles, from the committee appointed on
the fifth of February last, to whom were referred
the memorials and petitions of sundry citizens of
the United States, and resident merchants therein,
praying relief in the case of depredations commit-
ted on their vessels and cargoes, while in pursuit of
lawful commerce, by the cruisers of the French
Republic, during the late European war, made a
report thereon ; which was read, and ordered to
lie on the table.
JUDICIARY SYSTEM.
The Houf^e took up the amendment, reported
yesterday, to the Judiciary bill, which recom-
mended the striking out the sixth section, and
substituting a section prescribing that wherever
the two judges of the circuit court are divided In
opinion, a certificate of the case shall be sent up
to the Supreme Court, who shall decide, subject
to certain qualifications.
Mr. Griswold moved to divide the question,
and to take the vote in the first instance on stri-
king out the section. The striking out carried.
Mr. Henderson opposed the amendment on
the ground of the' delay to which it would give
rise. Every question of evidence on which there
shall be a division will arrest the proceedings ot
the court. Are gentlemen willing to give to the
people of America a bill, purporting to amend the
old system, which will m reality be a snare to
1217
HISTORY OP CONGRESS.
1218
April, 1802.
Judiciary System,
H. opR.
suitors? As much as I should lament the neces-
sity of one judge deciding, I would prefer that
plan to placing the citizen in the situation pro-
posed by this amendment. I believe the system
would be the better by giving all circuit duties to
one fudge of the Supreme Court, though that too
would be, in my opinion highly defective.
Mr. Nicholson. — The select committee were
unanimous in recommending to the House this
amendment. It occurred to them that some in-
conveniences would arise from it ; but no substi-
tute offered itself to their minds, from which
greater difficulties would not flow. From their
knowledge of the administration of justice, they
believed that very little inconvenience would arise.
In the course of the last eight years, but one in-
stance was recollected, though the circuit courts
were often held by two justices, in which there
was a division, which rendered it necessary to
carry a cause to the Supreme Court. I have now
to regret that the gentlemen from Connecticut
and North Carolina, (Messrs. Qriswold and
Henderson,) instead of illuminating our minds,
should employ their understandings in opposing
the report. 1 have heard no substitute proposed,
excepting the decision by a single judge, which I
should not myself consider as an amendment of
the amendment, as I have ever understood that
in a multitude of counsellors there is wisdom.
The gentleman supposes the amendment will
arrest the proceedings of the court in every case
of disputed evidence. I am of a different opinion.
In the case alluded to, the witness will be allowed
to give his evidence, if the court is divided, and
the circumstance of a division of the judges will
be sent u;) in the nature of a bill of exceptions to
the Supreme Court, who must decide on it. This
will not arrest proprress in the trial below. In a
question of such intricacy, as shall divide the
court, will it be a denial of justice to delay the
final decision till the Supreme Court shall settle
it? Not to do this, miffnt be unjust and iniqui-
tous ; and to vest a finaidecision in the justice of
the Supreme Court would be to declare the dis-
trict judffe a mere cypher, and unworthy of confi-
dence. Where is the oenefit of a Court of Appeals
if an appeal be not allowed in cases of sucn im-
portance 7 Inconveniences certainly will happen,
but they result from the nature of law, which you
cannot make to suit every man's case. You must,
iherefore, submit to them.
Mr. Griswold. — No case can be brought to the
Supreme Court by writ of error under $2,000;
lor any to the circuit from the district courts less
han $500. Under this provision, sums under Q500
nay be sent to the Supreme Court; whereby suit-
)rs in remote quarters will incur expenses beyond
he sum litigated. This will be a mere mockery
>f justice, and will drive every suitor from your
!Ourts. If that be the object of gentlemen, no
tetter mode of accomplishing it can be devised,
or no prudent man will run the hazard of going
lalf a dozen times to the seat of Government. I
•elieve with the gentleman from Maryland in the
jea that courts are not often divided. I know
hat they are not often divided on a final question;
7th Con.— 39
but there is scarcely a litigated case in which the
j courts do not concur on collateral points.
As to the admission of a witness, the fact is, if
I the court differs, there is no admission. This
must be the case in States where there is no cast-
infir vote. In Connecticut there is a casting vote.
The cause, therefore, cannot go on. There will
be a delay of ultimate decision until the opinion
of the Supreme Court is known.
.The gentleman from Maryland bays we only
find fault with the report without proposing any-
I thing amendatory of it. Why, I can propose tne
re-enaction of the law of the last session just re-
fl^aled. I believe with him there is safety in a
multiplicity of counsellors. He ought to have
recollected the motion before he voted for the re-
peal. Let him, therefore, give force to that law.
But I am prepared to propose another plan, that
the circuit court consist of one judge. Not that I
like this plan, on the contrary, 1 may almost say I
abhor it ; but, of the two alternatives, this is the
best.
Mr. R. WtLLiAMs.-r-It is not to be expected that
gentlemen on the other side will agree to this law.
1 presume it is not their wish to have any of the
responsibility attending it. Nor is it my wish that
they should. My colleague has said, he would
rather strike out the whole section than agree to
this amendment. What would be the effect ? Bv
this amendment there may be a decision, thoura
there should be some delay. By striking out the
section, there would be no decision at ail. Under
the old law, if division occurred, the case was de-
cided at the next term b^ the new judge, there be-
in^ an interchange of judges. The gentleman
might, .therefore, on the principle on which he
now judges, as well object to the delay occasion-
ed by the postponement. I have, however, no
partiality to this amendment. I should have no
objection to let all preliminary questions fall, if the
court is divided, and to allow an appeal only on
the ultimate question. In North Carolina there are
but two judges. This has been the practice there,
without any inconvenience being experienced.
Mr. Henderson. — I believe this bill is compos-
ed of such heterogeneous elements that it is im-
possible for any ingenuity to make anything out
of it. But, as it must pass, it is our duty to ren-
der it as unexceptionable as possible ; and what
interest can we nave in an imperfect system?
My objection has been attempted to be answer-
ed. One of the cases which I put, related to the
competency of witnesses. The gentleman from
Maryland says, everV man is a conipetent witness
until proved not to be so. Now, I ask, if a wit-
ne6s is stated to be interested, and the court is di-
viddQ, how can the cause go on until a decision is
made by the Supreme Court ? The gentleman
alluded to a bill of exceptions ; but that is never
offered till the decision of the cause. What ex-
ception, moreover, can be taken where there is no
decision? Every man, acquainted with lecal pro-
ceedings, knows such language is unintelligible.
In the case of a bond, the whole jot depends
upon knowing it ; and yet the gentleman says the
cause may go on !
1219
HISTORY OF CONGRESS.
1220
H. OF R.
Judiciary System.
April, 1802.
I did not say it was better to have no seclioik
than this. I said it would be better to retain the
section stricken out than this. I hope, therefore,
the House will recommit the bill, that we may
give the people at least a substance of justice, if
nothing else. I fully agree with my friend from
Connecticut (Mr. Griswold) that gentlemen by
this time see the propriety of keeping the late
system, rather than adopt this heterogeneous mon-
grel system. I do not believe that the ingenuity
of man can rear on this basis a tolerable system.
I would prefer trusting to a single judge, to the
holding out false colors, and promising justice aqd
yet denying it. For, I repeat it, under this plan
It will be impossible to try causes, which, if once
hunz up, will be for life.
The question was then taken on agreeing to the
report of the select committee, and carried— ayes
39, noes 27.
Mr. Letb moved to add to the bill the following
new section :
" That, fh>m and after the passing of this ac^ no
special juries shall be returned by the clerks of any of
the said circuit courts ; but that, in all cases, in which
it was the duty of the said clerks to return special ju-
ries before the passing of this act, it shall be the duty
of the marshal for the district where such circuit court
may be held, to return special juries in the same man-
ner and form, as, by the laws of the respective States,
the said clerks were required to return the same.'*
Mr. Dennis said, he understood the object of
the gentleman was, to prevent the packing of ju-
ries. He wished to know whether this effect was
likely to follow from transferring the duty from
an officer who holds his appointment during good
behaviour, and who, he believed, was dependent
upon no one, to an officer who was the mere crea-
ture of Executive power ?
Mr. Leib. — My object is to prevent the packing
of juries, which has heretofore been exercised by
the clerks. I hold an opinion contrary to that of
the gentleman from Maryland. I consider the
marslial as a responsible officer, amenable to the
President; whereas the clerk is the mere creature
of, and dependant on. the court. I, therefore, think
a more impartial selection of juries will be ob-
tained by confiding this duty to the marshal than
the court.
Mr. MiLLEDGE was opposed to the motion.
Mr. Giles hoped the amendment would obtain,
the effect of which was simply to transfer to the
marshal the duty of selecting special jurors, in
those States where this is not already the case. It
is easy to see that, if the juds^es should possess a
bias towards particular individuals, no mode could
be readier to give efficacy to that bias than by de-
claring the cause should be tried by a special jury,
and make their clerk designate them. He would
ask, if, under these circumstances, the clerk would
not be most likely, of all other individuals, to sum-
mon a jury favorable to the views of the court.
We have been informed that there have been in-
conveniences of this kind experienced, in cases
where there have been biasses of courts to partic-
ular descriptions of citizens. Mr. G. said, he had
DO doubt of the existence of such impressions.
The first time he heard of this right, possessed by
the clerks, he thought it the most extraordinary he
had ever heard of. He believed the amendment
offered would remedy the present evil, existing in
some of the States, without any inconveDience to
any other State.
Mr. Davis. — The power of selection must re-
side somewhere. The officer called upon to per-
form this duty ought to have some know^Iedge of
men. The sphere of acquaintance enjoyed by the
clerk, from the nature of his ordinary duties, is
limited, whereas the marshal Dece.ssarily becomes
acquainted with all the prominent characters in
his district. For this reason, I think, the duty
will be best confided to the marshal.
Mr. Dennis. — The reasoning of the gentlemen
from Virginia and Pennsylvania is founded in
mistake. They have taken that for granted which
remains to be proved. If the clerks were the
creatures of the courts, and removable at their
pleasure, there would be some force in their re-
marks. But that remains to be proved. The
courts have the power of appointing, but not of
removing; for I take it for granted that the offi-
cers appointed by the courts are only removable
for malconduct.
It appears to me, since we have heard so much
about Executive patronage, that no possible case
can be conceived of, where there can be greater
danger than in giving the right of selecting juron
to the marshals, who are the mere creatures of
the President. We are told, there is no danger
from this source, except in cases of a political com-
plexion. But there is no medium through which
political prejudices will operate more effeccuallj
than through the marshals.
Mr. Bataru said, he did not feel a strong spirit
of hostility to the amendment, because, as it was
expressed, he deemed it an extremely harmless
thing, which tended only to expose the House to
ridicule. It provided for jurors being returned bf
marshals in cases where the clerks of the court
had heretofore returned them. Now, sir, no suck
cases exist; clerks never do nor never did return
jurors.
Mr. B. was, however, opposed to the principle,
which, he supposed, it was intended to carry into
execution. The object of the amendment, it
would be perceived, was to prevent special juries.
He deemed it very important to retain the power
of summoning special juries in certain cases. Id
questions of ereat importance, which often arise
in courts, and which involve great principles cf
law as well as intricate questions of fact, si>ecial
juries are important. However competent ordi-
nary juries may be to decide causes generalir
yet when cpreat commercial questions are involv-
ed in such decision, it must be rerv proper tt.-
have the power of summoning a jury ormerchaD*.5
to decide. The same remark is applicable to othn
Erofessions and business in life. Men whose ticse
as been devoted to particular pursuits, ought ro
be called on to decide in questions which re^rd
their particular business. Clerks of the courts be
considered as the proper persons to select such jc-
rors. They are responsible officers, appointed bv
1221
HISTORY OF CONGRESS.
1222
April, 1802.
Judiciary System.
H. opR.
the coart, dependant on their good behaviour ; and
who is most competent to decide what is the na-
ture of a cause, the court or the marshal ? Mar-
shals are the mere creatures of the Executive,
proceeding ./rom the nostrils of your President.
Their political existence can be extinguished in a
moment.
I am at no loss to see the object of this motion.
Notwithstanding the declarations of gentlemen
against Executive influence, we have for one year
past seen a succession of acts tending to the prin-
ciple from which they had been before diverging.
Tney are now for making the selection of juries
dependent upon a marshal, who is dependant upon
the President, as they find that power not in the
hands of men so dependant upon them as a mar-
shal. And, from this perishable motive, they are
for establishing a precedent so dangerous to the
administration of justice.
Mr. Giles. — I did not intend to have risen in
this debate, as my indisposition is such as almost
to make silence necessary. But the charge of
fostering Executive patronage has been so often
made that I will trouble the House with a few
ideas ; and I beg gentlemen to review the meas-
ures of the session, and say whether those measures
are in the least at variance with the professions
under which those now in power came into place,
and whether those who have heretofore been the
strenuous friends of Executive patronage, have
not tried to divest the President of every power
constitutionally delegated to him? Wnat has
been done this session? The internal revenues
have been abolished. I beg gentlemen to look at
the volume laid before us, and to see how many
offices have been taken from Executive patronage.
I have not counted the number, but I observe them
in large columns. These have been destroyed at
a single blow. Those heretofore, when out of
power, against Executive patronage, say to the
President, we repeat to yon now what we hereto-
fore have told you, and we have therefore taken
from you the appointment of more than four hun*
dred officers.
I ask, how man V new offices have been created,
or transferred to the President ? I know of none,
unless the Commissioners of Bankruptcy, who,
according to this act, are to be appointea in the
first instance by the President.
Four or five hundred old officers have been dis-
missed, no new ones have been created ; and yet
we are told that we are in favor of swelling Ex-
ecutive patronage. Again, I find several foreign
Ministers dismissed, and still we are told that we
are favorites of Executive patronage. I deny the
point ; I deny that we have ever voted for an of-
fice that was not necessary. I say, on the other
hand, that the number of officers we found in ex-
istence has been much lessened, and may be les-
sened still more.
I must observe, that the gentleman from Dela-
ware has come nearer the true point than the i^en-
tleman from Maryland, (Mr. Dennis,) who said,
if the clerks are tne creatures of the court, there
would be some force in objecting to their having
the selection of jurors. The gentleman from
Delaware says, the court itself has this right. But
how long have we heard this doctrine ? For my
{)art. when I heard the gentleman make the dec-
aration, that the courts had thb power, I thought
it most singular. But ^rant that the courts have
this power, what does it amount to ? If chosen
by the courts, will jurors be independent? In the
existence of political divisions, are courts impar-
tial ? I say, that it is within my own knowledge,
that jurors have been selected with a view to par-
ticular ends.
It is true that they are not now so selected. No,
sir ; for, if the marsnal is on one side, the court is
on the other, and is a check on his partiality?
The court has the power of directing the jury ;
and, if they see fit, of gran ting a new trial. And,
permit me to say, nothing can be so dangerous as
to unite the power of selecting jurors, and of de-
ciding the cause.
We are told there may be commercial cases
which require a select jury. In such cases, wby
may not the marshal make the selection ?
But suppose a political case should occur. This
is the most likely, when it does occur, to be pro-
ductive of mischief; and, I believe, if we have
had mechanical and commercial, we have also
political juries.
The gentleman from Delaware (Mr. Bayard)
says, he is not at a loss to understand this ques-
tion. No doubt, he is not at a loss. He under-
stands all questions. And I wish that that gentle-
man, as well as every other gentleman, should un-
derstand it. I say it is improper that judfi;es should
empannel the jury. If there are such marked
political divisions, as I fear there are, it is most
dangerous to unite the power of empannelling,
with that of deciding. If you do this, you give
the principle, so long contended for,*not that of
the independence, but the supremacy of the judges.
For, during the whole of this session, gentlemen
have been using improper names. No man val-
ues more highly than I do the independence of the
judges ; but the question is a question of suprem-
acy ; they are to be made supreme ! They are to
control all your laws ! You have given them a
great variety of powers, and now they are to have
the power of empannelling juries.
I beg leave to observe that this amendment will
not have the smallest operation on Virginia, where
the marshal summons all juries ; but if there be a
part of the United States where this evil exists, it
ought to be remedied. Not that I am in favor of
any bias whatever in the designation of jurors. I
wish there was none ; I am sorry that our judges
are politicians; and so long: as the courts are po-
litical, it seems to me necessary^ in order to meet
them, that there should be political juries. The
courts can almost do anything ; they decide the
evi'^ence received, jthey ciiarge the jury, and may
grant new trials. It is, therefore, improper that
the clerk should empannel the jury.
The gentleman from Delaware says, there ma j
be a change of men hereafter. That, to me, is
altogether immaterial, as I am for acting on gen-
eral principles, which shall equally apply to all
men.
1223
HISTORY OF CONGRESS.
1224
H. OP R.
Judiciary System,
April. 1802.
Mr. Batard said, he should have no objection
to vote for the amendment, if he did not consider
it, not only harmless, but absurd. He did not see
how political questions had anything to do with
struck juries. Such questions arise only on crim-
inal prosecutions; and in those, struck juries are
never used ; they are summoned in civil actions
only. But he consiidered the amendment as a
mere bagat^Ue, it was only a grasp, at all power
to be placed in the hands of the Executive. As
to Executive patronage, the repeal of the internal
taxes proved that those who voted for the repeal
were for reducing Executive patronage; it proves,
also, that those who voted against it were not un-
willing to give to the Executive a legitimate ex-
ercise of patronage where it was necessary for the
public good. But he bad seen instances, in cases
not calculated to alarm the public mind, where a
strong disposition had been shown to extend Ex-
ecutive patronage.
The question was then taken on Mr. Leib's
motion, and carried — ayes 41, noes 32.
Mr. Dennis moved to strike out the fifteenth
section, which is in the following words :
** And be it further enaded. That there shall be ap-
pointed by the President of Uie United States, from
time to time, as many general Commissioners of Bank-
ruptcy in each district of the United States, as he may
deem necessary ; and upon petition to the judge of a
district court, for a commission of bankruptcy, he shall
proceed in, and by an act, entitled * An act to establish
a uniform system of bankruptcy throughout the United
States/ and appoint, not exceeding thiee of the said
general Comoiissioners of the particular bankrupt pe-
titioned against ; and the said Commissioners, together
with the clerk, shall each be allowed, as a full compen-
sation for their services, when sitting and acting under
their commissions, at the rate of six dollars per day, for
every day wliich they may be employed in the same
business, to be apportioned among the several causes
on which they may act on the same day^ and to be paid
out of the respective bankrupts' estates: Provided, That
the Commissioners, who may have been, or may be,
appointed in any district, before notice shall be given
of the appointment of Commissioners for such district,
by the President, in pursuance of this act; and who
shall not then have contemplated their business, shall
be authorized to proceed and finish the same, upon the
terms of their original appointment"
Mr. Dennis called for the yeas and nays. This
section says nothing less than that the courts are
not to be trusted ; and if this power be vested in
the President, I can see no reason why the ap-
pointment of Commissioners on a petition in
chancery may not also be vested in him. Gentle-
men have said much about abridging Executive
patronage. Permit me to say that this section
vests in the President the power of appointing
every man, woman, and child in the United States,
a Conamissioner of bankruptcy. But my great
objection, is the inconvenience that will' attend
this mode of appointment. The President must
either appoint a vast number of Commissioners,
or the inconvenience will be very great. In my
opinion, it is improper to appoint general Commis-
sioners ; they ought to be appointed in each spe-
cial case.
Mr. S. Shitb. — The House well know that I
have always been an advocate for the bankrupt
system ; I am still an advocate of it; I am a friend
to it ; and it is because I am a friend to it. that I
shall vote against striking out this section. I be-
lieve the mode pointed out in this section will be
most agreeable to merchants, who are most inter-
ested in it. It will be recollected that, at present,
the Commissioners are appointed by the district
judge, to whom appeals are to be had; when the
Commissioners shall be considered as acting
wrong. The Commissioners, therefore, will l«
extremely cautious how they offend the district
judge, and be apt to be too much biassed by him.
At present, the commission is not general, but
formed for every special case. With respect to
the Commissioners of Maryland, I have never
heard any complaints. They are men of respect-
ability. But I wish this commission to be per-
fectly independent. This new course will make
them more independent. The President will first
name the Commissioners, from whom the judge
will have an opportunity of selecting fit charac-
ters for each case ; and I am convinced that this
will be the most satisfactory. As to Executive
patronage, I can say, with the gentleman from
Delaware, I can see no patronage created in this
measure. With regard to appointments, they are
constitutionally vested in the President, who will,
in general, discharge the duty well, though he
may be sometimes mistaken.
Mr. Giles said, though in favor of the section^
he was not very tenacious of it ; but he believed
the appointment to office ou^ht to be where the
Constitution had placed it, in the hands of the
President. The judges have proper subjects on
which to exercise their powers ; and a preclusion
from all other unnecessary objects will best insure
their independence. These officers are considered
as important and responsible. He did not see any
part of the Constitution that gave the judge the
power of appointing them.
Mr. Giles said, bis indifference to this subject
arose from another reason. He believed the bank-
rupt law the worst act that Congress had ever
passed. He was, however, perfecUy willing that
experience should test it. He had, since its pas-
sage, heard of no new proselytes to it, while he
had heard of many complaints against it. He
believed that, at the next session, the force of pub-
lic opinion would repeal it; and that this eflect
would be principally produced by the verf per-
sons for whose benefit it was formed.
Mr. Bayaro said, he had not the smallest donbt
of the sincerity of the gentleman from Vir^nia,
when he tells us the courts of law are the worst
possible deposits of appointments. Nor was he
at any loss to know to what to ascribe this opin-
ion. He says the President is the natural officer
to make appointments. He had no doubt that
gentleman now thinks so, as well as other gentle-
men, who, until lately, thought verv differently.
Mr. B. said, he could convince the gentleman
there was no repugnance to the Constitation in
vesting this power in the judges. He then read
the 2d section of article 2d of the Constitation :
1225
mSTORT OF CONGRESS.
1220
April, 1802.
Judiciary System,
H. ofR.
** Congreas may, by law, vest the appointment of
such inferior officers, as they think proper, in the Pres-
ident alone, in the court* of law, or in the heads of
departments.''
After hearing this section of the Constitution,
the gentleman will not say it is more natural to give
this power to the President than to the judges.
It is a paltry affair. The power to appoint in
these cases cannot create a patronage very useful
to the President. From all experience, under a
system of bankrupt laws, the power now to be
^iven to the President, ought to belong to the
judges. In England, tbe King cannot appoint a
Commissioner. The power is appurtenant to the
court; and the experience of this country has
shown no ioconvenience from the power vested
in the Chancellor. But why, sir, on a bill pro-
fessing to amend the Judiciary system, are we led
into a discussion of the bankrupt act ? Why are
we told the law is to be repealed ? And wny is
this section, not relating to the subject of the
bill, introduced into it ? It is the expectation of
taking a miserable power from the courts to vest
in your President. Has there been any complaints,
remonstrances, or petitions, against abuses of the
power in the judges? I have heard of none.
Why, then, transfer the power from a department
possessing no power, to one already posiiessing ex-
orbitant powers? Gentlemen will find themselves
infinitely mistaken in giving this power to tbe
President ; it will not extend his influence so far
as his disappointment. When gentlemen recol-
lect seriously the duties of the Commissioners,
they must be convinced of the diflSculty uf the
President's filling these appointments. Th^ or-
dinary characters, fit to fill these offices, and wil-
ling to fill them^ are infinitely below the knowl-
edge of the President. He must rely on the ad-
vice of others. By what light will he be instructed
as to the number necessary? In Delaware, there
has not been occasion for a single Commissioner
of Bankruptcy ; in Pennsylvania, only in Phila-
^ieipbia; but they may be wanted in the other
parts of the State ; ana the nomination must be
dispersed over the country. If you are jealous of
the judges, how do you operate on them ? You
take not their power ; for, after all, the President
does not make them Commissioners, but only
<iualifies them to serve when selected by the judge ;
the men thus preferred to the others, are so far
obh'i^ed by tbe preference; and if the influence of
the judge is feared, here is still a field to exercise
it. Your Presidents may fall on men the first vic-
tims of the law. The intimate connexion of mer-
•chants is so intricate, that no previous appoint-
ment can be made, without the hazard of making
men judges in their own* cause. Upon the whole,
I perceive much injury which may result from
this innovation, witnout any benefit. The com-
pensation, by the present section, of twenty-four
<]ollars per day, for three Commissioners and
clerk, will eat up ever^ fragment of the bankrupt's
estate, for whom nothing will escape, but a mis-
erable remnant.
Mr. Bacon. — I am apprehensive that the deter-
mining who are to perform these duties does not
depend on a long chain of reasoning. It appears
to me that there is a strong impropriety in vesting
the same men witl) the power of appointing and
ascertaining the compensation of the person ap-
pointed. This is nearly the same as fixing* his
own compensation ; for he has only to appoint his
own friend, and then determine his compensation.
This is too great a temptation for human nature ;
and, with me, weighs more than the long train of
logical reasoning which we have just heard. I
am, therefore, against striking out the section.
Mr. GooDARu said that, if he was fully satisfied
that the gentleman from Virginia (Mr. Giles)
was correct in his opinion of the bankrupt law,
and he was not perfectly satisfied that he might
not be correct, he sboula not feel such strong ob«
jcctions to the provisions of the section. But,
being willing to give the system a fair experi-
ment, he could not consent to adopt the section ;
because he believed it calculated to render the
law much more inconvenient to the citizens, add
to render 4t odious. The President, by this sec-
tion, is authorized to appoint, in each State, as
many Commissioners ot Bankruptcy as he might
think proper. This provision mignt not be pro-
ductive of any considerable inconveniences to the
few large cities; and if bankruptcies could be
confined to these cities, he should feel indifierent
about this provision. But, in tbe State which he
had the honor to represent, there were no very
large trading towns, but many smaller ones, and
persons who might be liable to bankruptcy were
scattered over all parts of the State. The conse-
quence of this provision would be, that the Presi-
dent must either appoint a host of Commissioners
in all parts of the State, or rather capacitate a
vast number of persons by commission, under him,
to be appointed Commissioners by the judges ; or
the citizens from the extreme parts of the State,
in case no greater number than was originally
contemplated, (not less than three nor more than
twelve,; must travel to one central ipot to have
this business done, in case of bankruptcies ; either
of which would be very inconvenient and oppress-
ive. Besides, those named Commissioners by the
President, in the State of Connecticut, will he
incapacitated, under the laws of that State, from
being members of the State Legislature.
Mr. Elmendorp.— From representations made
to me, I confess I am extremely tenacious of this
section, [t has been shown, by the gentleman
from Delaware, that there are but three modes of
appointment; first, by the President; second, by
the courts; third, by the heads of departments.
When these offices are created, they become the
subjects of Legislative discretion. The practice
has been, not as stated by gentlemen for the court
to appoint for each particular case, but to appoint
a general board. From this practice, inconve-
niences have arisen too intolerable to be borne.
Improper persons have been appointed, and enor-
mous emoluments allowed ; and the whole frag-
ments of the bankrupt's estate have been destroyed,
i'he provisions of the law have been so tortured,
th^t the Commissioners have received, under the
sanction of the court, six dollars a day for every
"
1227
HISTORY OF CONGRESS.
1228
H. OP R.
Judiciary System.
April, 1802,
case of bankruptcy before them. It will be found
that the son of a judge has even been appointed.
Shall we, then continue this power in the bands
of the courts'? No; we have tried them abun-
dantly. We ought not, therefore, to shrink from
imposing this duty upon the President, which the
food of the country requires to be vested in him.
am not a friend to the bankrupt act, not because
I am inimical to a proper system of bankruptcy,
but because the evils, under the present system,
exceed the benefit which it confers. Under this
system, from the practice in New York, it would
«eem that it was not so much for the benefit of
the real bankrupt, as for those who can afford to
pay well, or can give security for those who wish
to become bankrupts.
I will ask) if the provision of this bill will not
be a check on the present abuses, by limiting the
total daily compensation to six dollars. J would
rather limit the allowance to four dollars a day ;
but I believe ten times six much greater than six.
I believe that appointments in the State of New
York are considered as more beneficial than any
that can be conferred -, and, if they are so emolu-
mentary, I fully agree with the gentleman from
Virginia, that tney ought not to be made the in-
struments of court patronage. Not that I am for
giving improper appointments to the President;
on the contrary, I wish less power of this kind
had been reposed in him; but, in this respect, I
am constrained to ol^ey the Constitution.
Mr. MoTT spoke against the section. When
the question was taken by yeas and nays, on strik-
ing out the 15th section, and lost. Yeas 35, nays
36, as follows :
YsAs — John Archer, James A. Bayard, Walter
Bowie, John Campbell, John Condit, Manasseh Cut-
ler, John Davenport, Thomas T. Davis, John Dennis,
William Dickson, Abiel Foster, Calvin Goddard, Ed-
win Gray, Roger Griswdd, Setfa Hastings, Archibald
Henderson, Benjamin Hnger, Thomas Lowndes, Lew-
is R. Morris; Thomas Morris, James Mott, Joseph H.
Nichoson, Thomas Plater, Nathan Read, William
Shepard, John Smilie, John Stanley, John Stratton,
Benjamin Tallmadge, Samuel Tenney, Thomas Til-
linghast, George B. Upham, Peleg Wadsworth, Lem-
uel Williams, and Henry Woods.
Nats — Willis Alston, John Bacon, Theodorus Bai-
ley, Phanuel Bishop, Richard Brent, Robert Brown,
William Butler, Thomas Claiborne, Matthew Clay,
John Clopton, Richard Cutts, John Dawson, Lucas
Elmendorf, Ebenezer Elmer, John Fowler, William
B. Giles, John A. Hanna, Joseph Heister, William
Helms, James Holland, David Holmes, Michael Leib,
John Milledge, Samuel L. Mitchill, Anthony New,
Israel Smith, John Smith, of Virginia, Josiah Smith,
Samuel Smith, Richard Stanford, Joseph Stanton, jr.,
John Stewart, David Thomas, Philip R. Thompson,
Abram Trigg, and Isaac Van Home.
Mr. Bayaro moved to amend the sixth section
by adding to the eleventh line, the wordsj, "and
which at the end of the said session shall remain
undetermined," and called for the yeas and nays ;
which were taken, without debate — yeas 32, nays
39, as follows:
YxAs — Willis Alston, James A. Bayard, John
Campbell, Manasseh Cutler, Richard Cutts, John Dar-
cnport, Thomas T. Davis, John Dennis, WiUiam Diek*
son, Ebenezer Elmer, Abiel Foster, Calvin Goddud,
Edwin Gray, Roger Griswold, Seth Hastings, Arch>
ibald Henderson, Benjamin Huger, Thomas Lowndes,
Lewis R. Morris, Thomas Morris, James Mott, Thomas
Plater, Nathan Read, John Stanley, John Stratton,
Benjamin Tallmadge, Samuel Tenney, Thomas TUlinv-
hast, George B. Upham, Peleg Wadsworth, Lemul
Williams, and Henry Woods.
Nats — John Archer, John Bacon, Theodoras Bailej,
Phanuel Bishop, Walter Bowie, Richaitl Brent, ftoiwl
Brown, William Butler, Matthew Clay, John ClopioD,
John Condit, John Dawson, Lucas Elmendorf, John
Fowler, William B. Giles, John A. Hanna, Joseph
Heister, William Helms, James Holland, David Holmes,
Michael Leib, John Milledge, Samuel L. Mitchill, An-
thony New, Joseph H. Nidiolson, John Smilie, Israel
Smith, John Smith, of Virginia, Jodafa Smith, Hamael
Smith, Henry Southard, Richard Stanford, Joseph Stan-
ton, jr., John Stewart, David Thomas, Philip R. Thom-
son, Abram Trigg, Philip Van Cortlandt, and Isaac Van
Home.
Mr. Batard offered a new section, to this effeci:
" That this act shall not go into operation, or take
effect, until the first day of July next;" and re-
quired the yeas and nays.
Mr. Bayard. — The system lately repealed will
not go out of operation until the first of July;
otherwise there will be coutrarious systems m
force at the same time. It is difi&cult to say what
would be the effect of a collision of the two sys-
tems. I would wish gentlemen to say. whether
the present circuit courts are, or are not, to have
a Spring session. This bill creates new circuit
coiyts, to take effect immediately. I am not pre-
pared to say whether the old circuit courts will
remain in force after the passing of this act I
am very much inclined to think that the effect of
this law may be, to suspend the circuit coarts
now sitting, and the effect mav be to annihilatt
judgments" now given. I would, therefore, wish
gentleman to be explicit.
Mr. Nicholson. — The objection, taken by the
gentleman, is fully provided against by the fourth
section; wherein it is declared, that none of the
circuit courts, created by this bill, shall be held
until after the first day of July next. There cao,
therefore, be no kind of contradiction betweea this
and the repealing law. But I believe the effect of
the amendment will be, to give the Supreme Court
a June session, which is not intended by the bill.
Mr. Bayard. — The gentleman from Maryland
has not answered my objection. His design is.
that the present circuit courts shall hold a Spriog
session. But this will not be the effect of the bill
The basis of the power of the old judges is de-
rived from the old division of the United States
into circuits; now, if this basis is chaoged bya
new division, how can the same judges be circuit
judges? The effect will be, to have two circuit
courts. As ^legislators, ou^ht we to suffer aoy
doubt to remain on a. subject, when we can r^
moire it by a single section? Is it not a matterof
serious consideration to the judges and suitors,
whether the judgments rendered in these courts
are nullities ? And what objection is there to
1229
HISTORY OF CONGRESS.
1230
April. 1802.
Judiciary System.
H. OF R.
the section now offered ? Why^ that it g;iyes a
session to the Supreme Court in June. But is
this a source of alarm ? Are the justices of the
Supreme Court objects of terror to gentlemen ?
Was not this session contemplated and expected?
The effect of the present bitl will be, to have no
court for foilrteen months. Is this Constitutional ?
Are the judges to consume their salaries without
having anything to do ? I call upon gentlemen to
consider tne alarming principle contained in this
bill. They are about to pronounce that the Su-
preme Court, a court formed under the Constitu-
tion, shall not sit for fourteen months, instead of
sitting in six months. Are gentlemen afraid of
the judges? Are they afraid that they will pro-
nounce the repealing law void? If gentlemen
think they have no such power, they will con-
clude that any interposition of the judges will be
rejected by the good sense of the people ; and if
they have such a power, are they prepared, on a
mere political pretence, to deprive them of it ?
Sir, as far as regards myself, I have not the small-
est knowledge that any such interposition will
take place, it is not probable that, at present, any
one judge knows the opinion of another. My
own opinion is, that it is scarcely probable they
will interpose. I do not see how that question
can come before them. It is ten to one that they
will not act upon it.
Mr. Nicholson. — I have no hesitation to de-
clare, that I am not afraid of the exercise of any
Constitutional authority of the judges. Such au-
thority can be exercised as well in February as in
June. They will have the same opportunity of
acting in February as in June. As far as regards
myself, I care not whether they pronounce the
repealing law unconstitutional or not, though I
should regret such an act, as I wish harmony to
prevail between all the departments of the Gov-
ernment. My being, therefore, in favor of postpon-
ing the session until February, dues not arise irom
anyr desifi^n which I entertain, to prevent the ex-
ercise or power by the judges. But we have as
good a right to suppose gentlemen on the other
side are as anxious for a session in June, that this
power may be exercised, as they have to suppose
we wish to avoid it. to prevent the exercise.
As to the proposition of one annual session, in-
stead of two, that has been already discussed and
decided upon. But, if gentlemen merely wish to
save the present circuit court<t until the first of
July, though I think that is already provided for
by the bill, I shall have do objection to an amend-
ment to that effect.
Mr. Griswolo. — The fourth section either puts
down the present circuit courts, or it establishes
two sets of circuit coiyts. It is, therefore, rea-
sonable and proper to agree to the amendment,
that this effect may be prevented. And I cannot
believe that this House is afraid of having a ses-
sion of the Supreme Court in June. I know that
it has been said, out of doors, that this is the great
object of the bill. I know there have been slan-
ders of this kind ; but they are too disgraceful to
ascribe to this body. The slander cannot, ought
not to be admitted. I, therefore, hope that gen-
tlemen will agree to have a session in June next.
For my part, 1 have strong reasons for wishinp; a
session in June. I believe the repealing act is a
usurpation of power by the Legislature -, and,
whenever I see a usurpation, I think the speedier
it is checked the better. I have, therefore, bo
hesitation to say, I wish an early sitting: of the
Supreme Court. To their judgments I submit,
ana I trust every member in the community witt
also submit.
Mr. Bacon. — I apprehend the gentleman need
not labor very hard to dispel the £ars entertained
of a sitting of the Supreme Court. I apprehend
there is no cause of fear. Nor do I see the ne-
cessity of the amendment, to save the Constitu-
tion ; because, if the repealing act be unconstitu-
tional, it is no law, and not in the way of their
meeting. If it is so considered by the judges,
they will meet together, of course. I, therefore,
think that even the gentleman from Connecticut
can have no very alarming apprehensions on thip
score.
The question was then taken by yeas and n^jn^
on Mr. Bayard's motion, and lost — yeas 27, nays
46, as follows :
Ykas — Willis Alston, James A. Bayard, John
Campbell, Manasseh Cutler, John Davenport, John
Dennis, Ebenezer Elmer, Abiel Foster, Calvin God-
dard, Roger Griswold, Seth Hastings, Archibald Hen-
derson, Benjamin Huger, Thomas Lowndes, Lewia
R. Morris, Thomas Morris, James Mott, Thomas Pla*
ter, Nathan Read, Josiah Smith, John Stanley, Ben-
jamin Tallmadge, Samuel Tenney, Thomas Tilting-
hast, George B. Upham, Peleg Wadsworth, and Lem-
uel Williams.
Nats — John Archer, John Bacon, Theodorua
Bailey, Phanuel Bishop, Walter Bowie, Richard Brent,
Robert Brown, William Butler, Thomas Claiborne,
Matthew Clay, John Clopton, John Condit, Richard
Cutts John Dawson. William Dickson, Lucas Elmen-
dorf, William Eustis, John Fowler, Wm. B. Giles,
Edwin Gray, John A. Hanna, Daniel Heister, Joseph
Heister, William Helms, James Holland, David Holmes,
Michael Leib, John Milledge, Samuel L. MitchiD,
Anthony New, Joseph H. Nicholson, John Smilie,
Israel Smith, John Smith, of New York, John Smith,
of Virginia, Samuel Smith, Richard Stanford, Joseph
Stanton, jr., John Taliaferro, jr., David Thomas, Phili|>
R. Thompson, Abram Trigg, John Trigg, Philip Van
GorUandt, and Isaac Van Home.
The bill was ordered to be read a third time .
to-morrow.
ADJOURNMENT.
Mr. Bayard moved that the House do come to
the following resolution:
Reaolvedt That the President of the Senate and
Speaker of the House of Representatives be authorised
to close the present session of Congress, by adjourning
their respective Houses on Monday, the twenty-sixth
instant.
The taking up the motion was supported by
Messrs. Bayard and S. Smith, and opposed by
Mr. Elmendorf.
Mr. D. Heister moved the previoys question.
Mr. Nicholson moved an adjournment.
Mr. Bayard called for the yeas and nays op
1231
HISTORY OF CONGRESS.
1232
H. OF R.
Judiciary System.
April, 1802.
the question of adjournment; which were taken,
and the adjournment lost — yeas 29, nays 41, as
follows :
Yeas — Willis Alston, John Bacon, Theodoru's
Bailey, Phanuel Bishop, Walter Bowie, Richard Brent,
John Campbell, Thomas Claiborne, John Clopton,
Richard Cutts, John Davenport, Thomas T. Davis,
William Dickson, Lucas Elmendorf, Ebenezer Elmer,
William Helms, James Holland, David Holmes,
Michael Leib, Anthony New, Joseph H. Nicholson,
Israel Smith, John Smith, of New York, John Smith,
of Virginia, Richard Stanford, Joseph Stanton, jr.,
John Stewart, Philip R. Thompson, and Philip Van
Cprtlandt,
NATS--John Archer, James A. Bayard, Robert
Brown, William Butler, Matthew Clay, John Condit,
Manasseh Cutler, Samuel W. Dana, John Dawson,
John Dennis, William Eustis, Abiel Foster, John Fow-
ler, William B. Giles, Calvin Goddard, Edwin Gray,
Roger Griswold, John A. Hanna, Seth Hastings,
Daniel Heister, Joseph Heister,* Archibald Henderson,
Benjamin Huger, Thomas Lowndes, John Milledge,
Samuel L. Mitchill, Lewis R. Morris, Thomas Morris,
Thomas Plater, Nathan Read, John Smilie, Samuel
Smith, Samuel Tenney, John Taliaferro, jr., Benjamin
ITallmadge, David Thomas, Abram Trigg, John Trigg,
George B. Upham, Isaac Van Home, and Lemuel
Williams.
The House then proceeded to consider the mo-
tion of Mr. Bayard, for authorizing an adjourn-
ment of the two Houses on the twenty-sixth
instant.
Mr. Giles moved to postpone the consideration
of the motion till Monday next.
Mr. S. Smith hoped the motion of Mr. Bayard
would be agreed to.
Mr. Bayard called for the yeas and nays on
Mr. Giles's motion.
Mr. Giles said he would much rather with-
draw his motion, than consume the time taken in
calling the yeas and navs.
Mr. Bayard then called for the yeas and nays
on his own motion ; which was carried — yeas 53,
nays 13) as follows :
Teas — Willis Alston, John Bacon, Theodonis Bai-
ley, James A. Bayard, Phanuel Bishop, Robert Brown,
William Butler, John Campbell, Thomas Claiborne,
Matthew Clay, John Clopton, John Condit, Manasseh
Cutler, Richard Cutts, Samuel W. Dana, John Den-
nis, Lucas Blmendorf, Ebenezer Elmer, William Eustis,
• Abiel Foster, William B. Giles, Calvin Goddard, Ed-
win Gray, Roger Griswold, John A. Hanna, Seth
Hastings, Daniel Heist|sr, William Helms, Archibald
Henderson, James Holland, Benjamin Huger, Michael
Leib, Thomas Lowndes, John Milledge, Lewis R.
Morris, Thos. Morris, Anthony New, Joseph H. Nich-
olson, Thomas Plater, Nathan Read, John Smilie,
Samuel Smith, Richard Stanford, John Stanley, Joseph
Stanton, jr., John Stewart, Benjamin Tallmadge, Da-
Tid Thomas, Philip R. Thompson, John Trigg, George
B. Upham, Isaac Van Home, and Lemuel Williams.
Nats — John Archer, Walter Bowie, Thomas T.
Davis, John Dawson William Dickson, John Fowler,
David Holmes, Israel Smith, John Smith, of New York,
Jolin Smith, of Virginia, John Taliaferro, jr., Abram
Trigg and Philip Van Cortlandt.
And then the House adjourned until to-mor-
TOW.
Friday, April 23.
The House resolved itself into a Committee of
the whole House on the bill making appropria-
tions for the Military Establishment of the Uaitei
States, in the year one thousand eight hundred
and two; and after some time spent therein, the
Committee rose, and reported several amend-
ments thereto.
Ordered, That the said bill, with the amend-
ments, do lie on the table.
Mr. Griswold made the following motion:
Resolved That the committee to whom was referred
the Message of the President of the United States, re-
specting the French corvette Berceau, be instructed to
inquire whether any further appropriations are necei-
sary to cover the expense whidi has arisen for the pur-
chase and repairing that vessel for the French Gorem-
ment, and for advancing to her officers their monthly
pay.
Mr. S. Smith moved to amend the motion by
striking out the words *'for repairing for French
Government."
Mr. Griswold opposed the amendment.
Mr. Giles hoped the gentleman from Maryland
would withdraw his amendment, and that the
motion would be agreed to.
Mr. S. Smith withdrew his motion, in order to
save time.
The motion was then agreed to without a
division.
JUDICIAL SYSTEM.
The bill to amend the Judicial System of the
United States was read a third time.
When Mr. R. Williams moved to recommil
the bill, for the purpose of striking out the 15th
section, which gives the nomiuation of Commis-
sioners of Bankruptcy to the President.
Cluestion on recommitment carried — yeas 37,
nays 33.
The House went immediately into Committee
of the Whole, Mr. S. Smith in the Chair, on ihb
section.
Mr. R. Williams moved to strike it oat.
Mr. Bayard. — I am decidedly opposed to the
passage of the law. Its defects are as Dumerous
as its provisions; and it introduces not asin^e
improvement into the system it is designed to
amend. I mean not to trouble the Hoasewith
an extended or detailed view of the subject. Coo-
sidering the value of our time, from the small
portion which remains before the session will
terminate, by the resolution we have passed,
I shall content myself with pointing out some ob-
jections to the bill; which, according to the opin-
ion I entertain, furnish sufficient ground to induce
gentlemen to refuse to it their assent.
The ninth section, which happens at present to
he under my eye, contains a provision, not simplf
absurd, but extremely mischievous. I should ha?e
moved to recommit the section, could I have flat-
tered myself with the most distant prospect that
any motion I made, supported by any reason which
could be advanced upon this subject, would bare
been adopted by a majority^ of the House.
But, sir, having failed m many amendments.
1233
HISTORY OF CONGRESS.
1234
April, 1802.
Judiciary System,
H. OP R.
recommended by a very plain strong sense, I was
unwilling to waste time in a vain efort, which
would have been resisted, without the trouble of
attending to its object.
The section to which I refer, provides, that all
causes and process, either of a civil or criminal
nature, which shall be depending or returnable in
any of the circuit or district courts of the United
States, on the first of July next, shall be contin-
ued, and transferred, and returnable to the circuit
and district courts established by this act.
Causes depending in, or process returnable to,
any district court in the United States, are trans-
ferred to the circuit and district courts established
hy the act. By the act there is a circuk court insti-
tuted in each district, but no new district court is
established, except in the district of North Caro-
lina and Tennessee.
One of two things must, therefore, follow ; ei-
ther, that all causes in the district courts of the
other districts must be transferred to the district
courts of North Carolina and Tennessee, or be
carried into the circuit courts, which the act estab-
lishes in the several districts. However absurd this
operation may be, yet, as the power of the Legisla-
ture to produce it cannot be denied, the express
and unequivocal words of the law must take effect.
It is not the desigrn, I presume, to abolish the
district courts ; and though they are suffered to
exist, they are capriciously stripped of all their
business which cumulated upon the circuit court.
I ask, if gentlemen can give a different construc-
tion to this section, if they can deny the opera-
tion I attrii>ute to it, and if there be a single mem-
ber who will undertake its defence ?
In looking, Mr. Speaker, through the bill be-
fore us, I discover but one defect of the ancient
system which it attempts to correct. That is the
rotary constitution of the court, in relation to the
judges who composed it. The act confines parti-
cular judges of the Supreme Court, to several cir-
cuits which it creates. This provision designs
that the circuit courts shall always be composed
of the same judges. This might have been con-
sidered as a useful improvement, if pains had not
been afterwards taken to render it aoortive. The
law has not named, though it has contrived to
designate, personally, the judges of the Supreme
Court, at present assigned to hold the courts in the
several circuits. But, as successive vacancies
happen on the bench of the Supreme Court, the
judges are, by allotment, to be assigned anew to
their different circuits.
This provision reproduces the very evil, and the
only one which the bill professes to correct in the
old system.
As there are six judges, and, generally, advanced
in life, vacancies from death or resignation must
occur in very short periods. Upon each vacancy,
every judge ceases to be attached to a particular
circuit, and must wait for a new allotment to
know the circuit to which he is to belong. The
judges had formerly the j>ower of assigning them-
selves to particular circuits, and the only change
which is introduced, is, that an assignment of the
judges once made, it cannot be varied until a va-
cancy on the'bench occurs. This, however, must
happen so frequently as to expose the circuit court
to the same oscillations, in the administration of
justice, as were experienced and complained of
under the old system.
I would beg. also, that gentlemen would give
us some information upon a point of great im-
portance, and of great doubt, which arises out of
the arrangements upon this subject. After a va-
cancy occurs upon the bench of the Supreme
Court, what is tne situation of the circuit courts,
before a new allotment is made by the judges or
the Supreme Court ?
Upon every new appointment, the allotment is
to be made ; and, until it is made, the power of
the judges, in their ancient circuits, would seem
to be suspended. The allotment can only be made
at a session of the Supreme Court; and, as the
court has but one annual session in the month of
February, if a vacancy should happen, and an
appointment be made in the month of March or of
April, the circuit courts would be suspended for
more than a year, and the whole business of the
courts destroyed by discontinuance. Is it possible
that gentlemen can give their assent to a bill preg-
nant with such mischief and injustice? Can they
suppose that this thin veil, this gauzy covering,
will conceal from the eyes of the world the latent
design of destroying the Judiciary power of the
United States, by rendering it incapable of attain-
ing justice, and productive only of vexation and
expense ?
The fourth section of the bill contains a provis-
ion which certainly transcends the power of Con-
gress, great as it has appeared during the existing
session. It enacts, that the court, in the fifth cir-
cuit, shall be holden by the present Chief Justice
and the Judge of the district in which the court
shall be holoen. The law has no limitation, and
is designed as a permanent system. It supposes,
therefore, that the present Chief Justice associated
with the district judge, is for ever to compose the
circuit court of the fiftn circuit. This, sir, might
have been an oversight in draughting the bill, but
what will it be when, with our eyes open, we
adopt it in the law. Will the public be satisfied
with laughing at the absurdity, without suspect-
ing the integrity of the motive which induced the
House to assent to it ?
I will not fatigue you, Mr. Speaker, with the
useless labor of attending to a critical examina-
tion of the incongruities and absurdities which
abound in the bill; but I call and I have a right
to call upon the friends of it to come forward,
and point out a single particular in which it cor-
rects a defect in the old system.
Do gentlemen suppose that the people of this
country have no understanding? Do they ima-
gine that they will always remain the dupes of
empty words, that they will look no farther than
the title of a law, and continue to repose an im-
plicit faith, after finding themselves repeatedly
deceived ? You call this a *' bill to amend the
Judicial system of the United States;" but amend-
ment is not the effect, and nothing is more remote
from the design of it.
i
1235
HISTORY OF CONGRESS,
1236
H. OP R.
Judiciary System,
April, 1802.
Having eoumerated the defects of the ancient
system upon a former occasion, I will not now re-
peat them ; but I affirm, and- if I am wrong, the
advocates of the bill will expose the error, that
not one of those defects is removed by the present
law.
There is one view of this subject which requires
that information should be given, not to the House
simply, but immediately to the nation. Is it the
design of gentlemen, by this bill, to destroy the
power of the present judges of the circuit courts
during the short period of their political existence,
allowed by the repealing act which was lately
passed ? This law is to take immediate effect. It
oreaks down all the circuits formed by the act of
1801, and throws the districts into new circuits.
The present judges were appointed and com-
missioned for certain circuits. A judge^ commis-
sioned for the first circuit, could exercise no au-
thoritv in the second. The new arrangement,
abolisning the old circuits, how are the judges to
determine the boundaries of their power?
I shall be allowed to exemplify my view, by
stating the case relative to the St&te to which I
belong. Under the law of 1801, Delaware was a
member of the third circuit; by the present bill
she is comprehended in the fourth ; the question,
therefore, is, whether a commission to hold a court
in the third circuit, will authorize a judge to hold
one in the fourth ? Is the point exempt from all
doubt ? And are we excusable in leavmg a doubt
upon a point of such consequence and respon-
sibility?
While we are passing this law, the courts are
in session ; the judges, obedient to the obligations
of duty, are exercising the solemn functions of
their office; and, while they are occupied as they
believe, in administering justice, if we abolish
their legitimate authority, we render them, their
officers, and suitors, trespassers, and might expose
them even to the accusation of murder.
Will not gentlemen avow their intentions on
this point, and, by a few plain words, enable the
judges distinctly to perceive the path which they
are to pursue ?
But, sir, when I look to the^ object of this bill, I
become sensible how idle it is for me to ask for
anything, however moderate and reasonable it
may be. To accomplish that object, every objec-
tion will be trodden under foot.
This act is not designed to amend the Judicial
system ; that is but pretence. If amendment had
been in view, gentlemen would have contrived a
better plan than the present bill proposes, which
I panegyrize, by calling a miserable piece of patch-
work. No, sir ; the desisn of this bill, is to pre-
vent the usual session of the Supreme Court in
next June.
It fs to prevent that court from expressing their
opinion upon the validity of the act lately passed,
which abolished the offices of the judges of the
circuit courts, until the act has gone into full ex-
ecution, and the excitement of the public mind is
abated. I know not that the subject would be
Drought before the judges, or that tbey would offi-
cially take it up ; but it is the fear of their solemn
opinion, and a knowledge of the just reverence
which the people of this country entertain for
judicial decision, which has given birth to the
present eipedient. Could a less motive induce
geiitlemen to agree to suspend the sessions of the
supreme Court for fourteen months? The last
session was in December ; the judges are forbid-
den to assemble again, until fourteen months from
that time have expired. Could a more dangerous
precedent than this be established ? May it not
lead to the virtual abolition of a court, the exist-
ence of which is required by the Constitution? If
the functions of the court can be extended by law
for fourteen months, what time will arrest as be-
fore we arrive at ten or twenty years ? This objec-
tion to the bill alone would be fatal, in my mind.
We have offered an amendment upon this point,
enabling the judges of the Supreme Court to meet
in June. We have begged gentlemen to accede
to this amendment, if for no other reason than to
banish the aspirations as to the object of the bill,
but though we are told they are indifferent as to
the opinion of the Supreme Court upon the va-
lidity of their late act. yet we find the bill tena-
ciously adhered to; and that, with all its imper-
fections about it, it is to be converted into a law.
The maioritv, sir, must have their will; but lam
deceived, if tneir triumph is of long duration. The
people of America can be governed but a short
time by empty words and hollow pretences.
The motion was further supported by Messrs.
R.Williams, Davis, T. Morris, GonoARo, Nich-
ols on, and Hastings, and opposed by Messrs.
Elmendorf and Bacon.
When the motion to strike out was agreed to —
yeas 44, nays 25.
The Committee rose, and reported their disa-
greement to the 15th section.
Report confirmed in the House.
The question was then put on the passage of
the bill.
Mr. Batard. called for the yeas and nays.
which were taken, and stood — yeas 46, nays 30, as
follows :
Yeas — Willis Alston, John Archer, John Bacon,
Theodoras Bailey, Ph&nuel Bishop, Walter Bowie,
Richard Brent, Robert Brown, William Batler, Thomas
Claiborne, Matthew Clay, John Clopton, John Condity
Richard Cutts, John Dawson, William Dickaoii, JLucai
Elmendorf, John Fowleri William B. GUes, Edwin
Gray, John A. Hanna, Daniel Heister, William Helms,
James Holland, David Holmes, Michael Leib, John
Milledge, Anthony New, Joseph H. Nicholson, John
Smilie, Israel Smith, John Smith, of New York, John
Smith, of Virginia, Samuel Smitii, Henry Southard,
Richard Stanford, Joseph Stanton, jr., John Stewart,
John Taliaferro, jr., Philip R. Thompson, Abram Trigg,
John Trigg, Philip Van Cortlandt, John P. Van Ness,
Isaac Van Home, and Robert Williams.
Nats — James A. Bayard, Thomaa Bonde, John
Campbell, Manasseh Cutler, Samuel W. Dana, John
Davenport, Thomas T. Davis, John Dennis, Ebeneaer
Elmer, Abiel Foster, Calvin Goddard, Roger GriswotiL
Seth Hastings, Archibald Henderson, Thos. Lowndes,
Lewis R. Morris, Thomas Morris, James Mott, Thomis
Plater, Nathan Read, John Stanley, John Stratloa,
Benjamin Tallmadge, Samuel Tenney, Thomaa Til-
1237
HISTORY OP CONGRESS.
1238
Apriu 1802.
The Mint.
H. OP R.
linghast, George B. Upham, Peleg Wadsworth, Lem-
uel Williamsi and Henry Woods.
THE MINT.
The House then went into Committee of the
Whole, on the bill for reflealing the several acts
establishing the Mint.
Mr. Giles observed, that when be had laid cer-
tain resolutions on the table respecting the sub-
ject, it was said the House had not sufficient in-
formation on which to act. To obtain this in-
formation he had suffered them to lay. The
information is now received. He believed that
information would satisfy the House of the little
utility of the Mint. He believed that from the
effects of a peace in Europe, we should have sil-
ver enough, and that we really had copper enough
to serve for several years. There was another
circumstance, which made it necessary for the
Hoase to act on the subject this session. After
the third of March, the establishment will have
to be moved to this place. There was also another
reason for acting. The Director states the im-
plements to be considerably out of order. Rather
than incur the expense of these repairs, he
thought it best for the United States to disembar-
rass themselves of this expense, and save an an-
nual sum of f 20,000. This would also afford a
relief to the revenue after repealing the internal
taxes.
The Committee rose, and reported the bill with-
out amendment.
The report of the Committee was immediately
taken up.
Mr, S. Smith. — When this subject was form-
erly before the House, I said that the gentleman
from Virginia was warranted in saying, that the
gold coin of the United States was finer than
some other in circulation ; for the Director of the
Mint, in his report for 1800, stated the American
gold to be $27 42 on 1,000 pennyweights, finer
than the Spanish doubloon ; that tne same report
stated the expense of the Mint Establishment at
$20.986 — the gain on copper for the same year
$5,050— leaving the real cost of the Mint for that
year $15,936 — the whole copper coin for 1800 be-
ing only $29,279; from whicn it will appear that
each cent (as was understood^ would cost the
United States half a dollar; this, however, was
on the presumption that little gold or silver would,
in future, be offered for coinage. In answer, a
gentleman from Connecticut (Mr. Dana) said,
that I was mistaken if I meant to say that each
cent had cost the United States half a dollar ; that
if I had said each dollar's worth of cents had cost
half a dollar I should have been more correct. In
answer I said that every gentleman must have
seen from the statement I gave in figures of the
quantity coined, and the cost of the Mint Estab-
lishment for a year, that I meant to say that each
dollar's worth of cents had cost half a dollar, and
that if I had said otherwise, it ought to have been
considered as a ^^ lapsus linguse," and not as an
attempt to mislead.
I have considered it proper, in justice to my-
self, to repeat what I had said on a former occa-
sion on the same subject, because the reporter of
that debate had been extremely inaccurate, owing
perhaps to his not being accustomed to the taking
of debates.* It will be remembered that a similar
mistake to that made by me had been made the
same day by the gentleman from Connecticut,
(Mr. Griswold,) from Delaware, (Mr. Batard,}
and from Virginia^ (Mr. Giles.) Indeed, it was
not easy to avoid such mistakes in the warmth of
debate.
I have DOW before me the last report of the Di-
rector of the Mint, by which I am confirmed in
my former opinion, the expense of the establish-
ment has exceeded even my expectations as to
the cents. Again I repeat what I formerly said,
that the Secretary of the Treasury may be em-
powered to contract with the bank, or with indi-
viduals of the United States, who snail be obliged
to stamp the cents within the United States, for
the quantity required annually. I observe that
the Director imports from England the plan-
chettes, or pieces the size of the cent, and stamps
them at the Mint ; the same may be done by the
banks or individuals without any cost or charge
on the Grovernment ; and we may put down an
establishment that has cost the United States
$30,000 per annum.
Mr. Dana. — The gentleman from Maryland, I
presume, has reference to me. I have a tolerable
recollection of what passed on that occasion,
though not a complete one, and I conceive the
statement of the gentleman from Maryland (Mr.
S. Smith) to be perfectly correct. It will be re-
collected that after the same mistake had been
made by my colleague, and other gentlemen, that
I rose and said I was perfectly satisfied that when
the gentleman from Marryland said that each cent
had cost the United States half a dollar, it was a
mistake, and made without any intention what-
ever of misleading the judgment of the House.
As some observations have been made on the
coinage of the precious metals as symbols of roy-
alty, and as an idea has been thrown out that the
copper coinage ought to be effected in foreign
countries, I will refer to the report of the then
Secretary of State, to show the ideas which he
entertained on the subject. [Mr. D. here quoted
this document.] I consider this as a complete
answer to the coins being made in a foreign
country.
But my great objection is, that the bill destroys
the whole establishment ; and that it does this in
so instantaneous a manner that it is scarcely pos-
sible to sell to the least advantage the implements
of the institution ; and because the copper coin-
age is rather a source of profit than loss, as Grov-
ernment may give this description of coins a
value far beyond the current price of the metal.
I am not tenacious of the whole establishment ;
but I should wish to see some provision, at least
for a copper coinage, made before the whole estab-
lishment is broken down. As to the law for fix-
* Allusion is here made to the Washington Fed-
eralist
1239
HISTORY OF CONGRESS.
1240
H. OF R.
The Mint.
April, 1802.
ing the Mint at Philadelphia expiring next ses-
sion, that can be very easily obviated. To do this
it will be only necessary to continue in force the
act lately passed for keeping the Mint at Phila-
delphia.
Mr. Giles said, that all gentlemen united in
opinion that this establishment could only be
maintained by a heavy charge to the Govern-
ment. And if we turn to the report of the Di-
rector, we shall find that he himself supposes the
^old and silver coinage not now necessary. This
18 the most expensive part of the system. We
must, then, if we keep up the institution, expend
annually $20,000, and find that after the expendi-
ture there is very little to be done.
As to the expense of the copper coinage, as
stated by the gentleman, it is a mere estimate ;
whereas the fact is that about $30,000 a year have
been expended for ten years ; why continue this
expense? To coin bullion, when we have no bul-
lion to coin?.
The gentleman from Connecticut has read an
extract from the report of the Secretary of State,
(the now President,) and he infers an opinion of
that character, that coining precious metals is an
act of national sovereignty. I suppose not to do
it is also an act of sovereignty. The truth is, the
sovereignty consists merely in the po.wer to do or
not to do it. I suppose gentlemen are for laying
out (30,000 annually, barely to show that such a
power exists. I believe there is another act of
dignified national sovereignty — the act of passing
wholesome laws; national sovereignty in this
case does not consist in making the impression of
our laws ourselves, but in having the power to
direct it to be done. It would be extraordinary
if, in this case as the other, we were to lay out
$30,000 to show that we possess this attribute of
national sovereignty. • As to the expending thou-
sands of dollars, every body knows we do that
every day on a llbem scale. That, therefore, is
no argument with me.
As to the copper coins, I am told there is no
deficiency of them. They are, I believe, of very
little consequence where I live, for the people will
not take them. But I believe there is a sufficient
quantity for the country. But if not, this hill
does not preclude the obtaining more. I have no
objection to making a contract with the bank to
supply us with cents, and I believe it may be done
in tnis way without costing us a dollar. i?he gen-
tleman from Connecticut states the profit that
may be derived from depreciating the coin. This,
it is true, has often been tried, but it has generally
failed. It certainly could not be far extended ;
for it would soon be discovered to be a mere cheat.
As far as the institution has heretofore gone,
out of $30,000 annually expended, about $5^000
has been saved by the copper coin. I believe
that profit would induce the bank to undertake
the coinage. At present the copper coin is im-
Eressed on metal of the same size that is imported
ere ; and the only thing done here is to make
the impression. This the bank can do as well as
the Government.
Mr. G. said he believed the idea of the gen-
tleman from Maryland (Mr. S. Smith) cor-
rect, that our gold coin was so pure that it h&d
tempted workers in the metal to transmute it, and
he believed this efiect would continue so long ai
the present laiw existed. The effect will be, that
the Mint will be refining the precious metals
barely for the benefit of workers in those metak
This, he believed, was the reason why we bad so
little coin made from the precious metals; aiid
the consequence will be that in a short time we
shall have very little of them. For these reasoos
he believed the establishment useless, and that the
single question was, whether we would aboiisii
an useless establishment, or keep it up at an an-
nual expense of $30,000 ? If, however, it was the
wish of the House to retain it, he would acquiesce,
though he thought it best to act up to the prioci-
ples on which they had started.
Mr. Dana disclaimed all thoughts of adultera-
ting the precious metals. His remarks had ap-
plied exclusively to the copper coinage.
Mr. EusTis said it appeared to him that in this
establishment much money was paid for but
little service rendered. But as this bill had beea
suffered to lie for a long time, he had eniertaioed
the belief that the gentleman who had introduced
it had contemplated the retaining some of the
offices^ while the expenses were reduced. Mr.E.
conceived this would be the best policy, as there
were men employed in the institution who could
not learn in a day or year what it was necessarj
for them to know. If such men shall hereafter
be wanted, they cannot be easily ^ot. It appeared
to him that every establishment is responsible for
the coin that bears its own stamp. Now, sap-
pose coin is imported, who is to determine its pu-
rity ? We must have some responsible officer to
examine it. It had always appeared to him rery
desirable to have a coin between the amount of
bank notes and copper coin. Such a result cer-
tainly should not cost $30,000; he supposed it
might be reduced to $10,000. He believed the
time would come when we will have a gold and
silver coinage — not from a sentiment of natioQal
pride, but from its utility. At present bank paper
IS very useful ; but the time may come when it
shall be thought proper to substitute coin for it
The idea of importing copper coin had never beea
agreeable to him. He believed it ahsolutelpe-
cessary to have an assay-master. He would, there-
fore, rather that the bill should not pass, if not
amended; though he wished a reduction of the
establishment.
Mr. Griswold. — I do not think the gentleman
correct in the view he has taken. I beliere the
expenses hereafter will be much lower than thef
have been heretofore, from the cost of the imple-
ments. But gentlemen ought to take into viev
the benefit to the nation derived from this estab-
lishment. If bullion be not coined here, it must
be sent to Europe, and all the charges of trans-
portation and insurance will be so much expense
to us. If gentlemen will attend to the sum coined
last year, they will find that the whole expense of
the establishment is saved to the nation, li the
coins are too fine they may be reduced ; for there
1241
HISTORY OF CONGRESS.
1242
April, 1802.
The Mint.
H. OF R.
is no necessity of having them finer than the coins
of England, with whom we have principal inter-
coarse.
With regard to the expenses of coinage, I differ
from the gentleman from Maryland, (Mr. S.
Smith,) who supposes every dollar of cents cost
half a dollar. On the other band, I believe there
is a profit. I have, indeed, no doubt of it. I
believe Government is a gainer from that coin-
age. I know Government can render itself a
gainer, as the value of the cent, when coined, is
much greater than before ; for, with regard to the
base metals, it is proper for Government to im-
press what value it pleases, as they are confined
to our own internal commerce. Of course we
may subject the copper coinage to such regula-
tions as not to be productive of expense.
It is well known that the amount of the copper
coinage is small. If the establishment is de-
stroyed, it will be lessened, and this will be at-
tended with infinite embarrassment to a certain
description of citizens. Is it not then essential, at
any rate, to pass this bill with some reservations?
The great expense is an objection to the establish-
ment. But let us wait, ai least for one year, to
find whether this expense will not be greatly re-
duced by peace ; ancf let us postpone the hill to
next session.
Mr. G. concluded by offering a motion to this
effect.
Mr. Giles. — I think the House prepared to act
at this time. Yet, though I shall vote against the
postponement, I shall be perfectly satisfied with
It, if acceptable to the House. Nor do I object to
a regulation to save the copper coinage. . I rather
believe this will be the better plan ; though I be-
lieve this cannot be done this session, as it will re-
quire a greater knowledge of the necessary ofiices
for it than we can possess.
I differ with gentlemen as to expense. I wish
"we could obtain a reimbursement of the expense
already incurred. I do not like th«se ideal gains ;
nor do I believe that bullion has ever been remit-
ted to Europe to be coined, and returned in the
sbape of English guineas. If remitted, I believe
it has been done to pay our debts. I believe the
Talue of the coin is altogether ideal. It is not the
sbape, but the intrinsic value by which it is esti-
mated. I therefore consider the expense of coin-
age as 80 much loss, and infer that we ought to
dispense with the establishment.
it is optional in the House to postpone the bill
to the next session, or make provision now for a
copper coinage. I am perfectly willing to give
some officer the power of contracting for a cop-
per coinage. This is the only thing we can
now do.
Mr. S. Smith said, that he was against the post-
ponement. He wished the subject decided on
during the present session. On examining the
last report of the Director of the Mint, he found
that the whole quantity of gold, silver,and cop-
per, coined from the commencement of th9 Mint,
until February last, amounted, agreeably to the
report, only to $3,045,000. The coinage of which
had actusJly cost the United States $296,957, be-
in^ nearly ten per cent, oi^ the Whole amount
corned. If the motion to postpone should not
succeedj I will move to recommit to a select com-
mittee, in order to bring in a section to provide
for the coinage of cents and half cents by contract.
Mr. Elmendorf said, he rose to state the result
of his inquiries. On making inquiry of the Sec-
retary of the Treasury, it was stated that Govern-
ment had a great quantity of copper on hand,
which it was found very difficult to dispose of.
He gave this information to show that no incon-
venience would result from having no new cop-
per coinage during this and the ensuing year.
The report states that the expense of importing
cents is not more than £20 per ton. This is so
much less expensive than to impress the coins
ourselves, that I should prefer importing them.
The question of postponement to the next ses-
sion was then taken; and lost — yeas 32, nays 37.
Mr. S. Smith then moved a recommitment of
the bill to a select committee. Carried — yeas 49.
Saturday, April 24.
A message from the Siena te informed the House
that the Senate insist on their amendments, dis-
agreed to by this House, to the bill, entitled " An
act further to alter and establish certain post
roads," and desire a conference with this House
on the subject-matter of the said amendments;
to which conference the Senate have appointed
managers on their part.
The House proceeded to consider so much of
the message from the Senate, of this day, as re-
lates to the amendments depending between the
two Houses to the bill, entitled ^' An act further to
alter and establish certain post roads;" Whereupon
Resolved^ That this House doth insist on their
disagreement to such of the said amendments as
have been disagreed to by this House, and insisted
on by the Senate, to the said bill.
Resolved^ That this House doth agree to the con-
ference desired by the Senate on the subject-mat-
ter of the said amendments ; and that Mr. Elmen-
dorf, Mr. Southard, and Mr. John Taliaferro,
jr., be appointed managers at the same, on the
part of this House.
The select committee, appointed yesterday^ made
a report to amend the bill respecting the Mmt, by
providing that the Secretary^ of the Treasury,
under the direction of the President, be authorized
to contract with the Bank of the United States, or
with individuals, for the coinage of cents and half
cents, provided the amount coined shall not ex-
ceed twenty tons annually, and that no expense
shall be incurred by the United States; and by
further providing, that all the implemetits and
personal effects o? the Mint should be retained.
Mr. L. R. Morris moved to postpone the con-
sideration of the report till the third Monday in
November. Lost— yeas 19.
Mr. Griswold moved a postponement until
Monday next. Lost— yeas 23.
The report of the select committee was agreed
to with an amendment authorizing the sale of the
horses employed in the Mint.
1243
HISTORY OF CONGRESS.
1244
H. OP R.
Civil List — Military Appropriations,
Apriu 1802.
So amended the bill was ordered to a third read-
ing on Moaday.
CIVIL LIST.
The House then went into Committee of the
Whole on the bill making appropriations for the
Civil List.
The several blanks were filled up, and some
amendments made ; when Mr. Nicholson moved
a new section, making appropriation of dol-
lars to the Attorney Ueneral, and other agents for
services rendered under the British Treaty.
Mr. Bayard opposed the appropriation as illegal.
He stated that as the board of Commissioners,
under the article of the treaty to which the ap-
propriation referred, had ceased to sit. and the
services of the Attorney General and tne agents
ceased, in hisopioion no allowance should be made.
Mr. Nicholson stated that, under similar cir-
cumstances, the late Attorney General had re-
ceived the additional compensation.
Mr. Bacon opposed the resolution, on the same
ground with Mr. Bayard; when the question was
taken, and the motion lost without a division.
The Committee rose and reported the bill, which
the House immediately took up.
All the amendments were agreed to without a
division^ excepting one appropriating 15 per cent,
in addition to the permanent allowance made to
clerks in the respective departments.
Mr. Griswold moved to disagree to this appro-
priation, on the ground that the expense of living
nad decreased, and the duties of the clerks declined.
Mr. Nicholson contested both points. He did
not think the expenses of living bad diminished
since the last year, when the same allowance was
made; and if the duties to be performed in some de-
partments had diminished, which he did not allow,
they had certainly increased in other departments,
viz. the Treasury and Post Office departments.
Mr. Griswold's motion was lost — yeas 21,
nays 32.
A bill making appropriation for the military
service for the year 1802, was read a third time
and passed.
Mr. Griswold moved, that the estimate of the
Clerk, of the contingent expenses of this House for
the present session, oe printed.
Mr. S. Smith moved, that there be added
thereto the estimate for the year 17^.
The amendment, and the original motion, were
carried.
MILITARY APPROPRIATIONS.
The House took up the bill making appropria-
tions for the military service for the year 1802, in
which several amendments were maae by general
consent.
One of the items of appropriation unites the
contingent expenses of the War Department, esti-
mated at $16,000. and the expenses of what has
heretofore been denominated the Cluartermaster
General's department, estimated at $48,000 in the
sum of S64,000.
Mr. Griswold moved to divide the item appro-
priating forty-eight thousand dollars for the de-
partment of the quartermaster general, and for
contingencies.
Mr. Nicholson said he could not agree to the
motion. The Secretary of War was a responsible
officer, while the quartermaster general was doi
He, therefore, wished to place the disbursement
under the direction of the Secretary. There had
been, to his knowledge, great abuses hereioforeia
the quartermaster's department. The Secreiary
is at present not responsible for the quartermaster
general, and before his accounts are settled years
may elapse. The present mode of appropriation
was not unusual. It was so made in 1797. What
has hitherto been the usage ? To consider the
whole appropriation as a general fond from which
money might be drawn as the SecreUry of War
pleases. The la w has heretofore lumped ia gross
the whole sum allowed for military service. Bat
this bill adopts a new plan. It specifies particu-
larly the several payments to be made. But in the
quartermaster's department, where it is absointely
necessary to allow some discretion, it has been
thought best to blend these two items to make the
Secretary responsible. This has been done to
prevent abuses.
Mr. Griswold. — The ideas of the gendeman
from Maryland furnish a conclusive argument for
the separation of these items. For, if blended,
the whole sum may be taken for the quartermas-
ter's department. Nor do we by this bill limit
disbursements by the quartermaster general j tor,
under all expenditures, the warrants mast be
signed by the Secretary of War, This, there-
fore, does not place the quartermaster genenl'»
department more under the control of the Secre
tary of War, than it was placed before. Now, if
we add sixteen thousand, which mav go to the
quartermaster's department, we extend ue power
of abuse. I therefore thinJc that on the plan we
are pursuing, we ought to make a separation of
this appropriation into two items ; then the six-
teen thousand dollars will be under the direct con-
trol of the Secretary, and the remainder under
the control of the quartermaster general.
I know the former course was different Sams
appropriated were considered as grants of money
to the department, to be applied to military sem-
ces under law. This course is now complained
of. I confess I do not feel great confidence in the
course now pursued. But I am willing to try it,
and to allow that if it succeeds, it will be a rery
fortunate and desirable thing. It is for this reason
that I wish to pursue all through the plan accord-
ing to the report of the Secretary.
Mr. S. Smith. — It will be remembered that we
have now no such thing as a quartermaster's dc
partment. It follows that the gentleman from
Connecticut (Mr. Griswold) would fill up the
blank with what does not exist. If he will ex-
amine the report of the Secretary of War, be
will find an appropriation desired for what has
heretofore been called the quartermaster general's
department. But the gentleman is very candid.
He says that he does not like this specific appro-
priation, and yet he is for carrying it so far as to
render it impossible for the department to more-
1245
HISTORY OF CONGRESS.
1246
April, 1802.
Military Appropriatiotis,
H. ofR.
It is, boweyer, but fair, that when a new experi-
ment is made, it should be tried in conformity to
the ideas of its friends ; it is not fair that those
inimical to it, should oppose it with hostile ideas.
The gentleman says, it will be a good thing if it
succeeds. Let him, then, suffer it to.be tried. If
he permits its friends to go on their own way,
then if it fails to succeed, he may say : I warned
vou against it, and the blame is altogether yours.
Not so, if the mode is altered by him ; for he will
himself then be responsible.
In the year 1801, a law passed appropriating
the gross sum of $2,093,000. [Mr. S. here quo-
ted the law.] The sums thereaiter specified were
never considered as a restraint on the department.
There was no contingent expense ; that was in-
cluded in the sweeping clause, under which the
whole sum appropriated might hare been applied
to contingencies.
For myself, I would just as lief ha.ve the old
as the new system. I have great confidence in
the heads of departments. I should hare been
well pleased that each head of department should
have returned an account specifying the amount
expended on each item, that we might be enabled
to see where the sum appropriated was exceeded.
But I found that the President had recommended
specific appropriations. I found a majority of this
House for it. I therefore acquiesced. I hope,
therefore, the motion will not succeed ; but that
we shall give those who approve the new mode
a fair chance for trying it.
Mr. Dana supposed, though there might be a
change of names, there could not be an armv
without something like a quartermaster generals
department. At the opening of Congress we re>
ceived from the President a recommendation of
specific appropriations. It is well known that
there has been a question for some time as to the
most expedient mode of making appropriations.
For himself, Mr. D. believed the only proper way
was for the Army or Navy to receive a general
sum, which shall be limited by law, as to pay,
provisions, and other ascertained compensations.
Latitude will forever be involved in tne quarter-
master's department, in the contingencies, and
for ordnance, &c. These are the only cases where
the laws admit a discretion. In the instance be-
fore the House, two of these are combined, and, so
far as they ffo, they completely overthrow the
idea of specific appropriations. Mr. D. said he
was in favor of this, tnough he believed it against
the President's recommendation, and in the very
face of specific appropriations. He was, there-
fore, against the amendment of his colleague.
Mr. Nicholson. — The gentleman from Con-
necticut (Mr. Dana) says these two items ought
not to be involved, because it is in direct opposi-
tion to the recommendation of the President, and
(0 our plan. I do not think so. He says there
are three objects that necessarilv involve great
discretion, which are blended in the biU, and that
it is proper to blend them. Why, if the gentle-
man had looked at the bill he would have found
the very reverse. For the article of subsistence
there is a distinct appropriation amounting to
^01,000. This is a sum on which the quarter-
master general, if there were one, is not any lon-
ger permitted to exercise a discretion ; for he can-
not now ^0 beyond this expense, if he wished.
This, too, IS specifically in conformity to the ad-
vice of the President. An important limitation
is here made, where the quartermaster general
used to exercise an unlimited discretion. For the
Treasury books will show that the quartermaster
general stands charged with the enormous sum of
eight hundred thousand dollars. Hereafter the
quartermaster general cannot avail himself of
this latitude. For this purpose we want specific
appropriations ; but when we specify we ought to
take care that we do not go too far. Though the
President has recommended our making appro-
priations more specific than they have heretofore
Been, he did not affirm to what length, in his
opinion, the specification should extend. But he
had seen that great abuses had taken place, and
therefore he recommended measures to correct
them.
According to the former mode the appropria-
tions were made as general as could be. so that
the officers of the War Department could incur
nearly such expenses as they please. Not so un-
der this bill. But it ought to be remembered that
there may be expenses under the article of con-
tingencies that may exceed sixteen thousand dol-
lars. So in the department of the quartermaster
general, thejr may exceed fortv-eight thousand
dollars. It is impossible rigidly to assign the
limits of those expenditures. It has, therefore,
been thought better to blend them together, and
make the Secretary responsible. Whether we
can make the former Secretary responsible for the
quartermaster general I do not know ; perhaps we
cannot. The quartermaster stands charged with
eight hundred thousand dollars ; he has sold prop-
ertv to the amount of three hundred thousand
dollars, and though written to, his accounts can-
not be got. To remedy these evils we now make
specific appropriations.
Mr. Edstis said he thought the blending or
separation of these items amounted to the same
thing. If you appropriate forty-eight thousand
dollars to what has heretofore been denominated
the quarterma.(iter'8 department, you allow the
Secretary to expend that sum at the different
posts.
The question was then taken on Mr. Gris-
wold's motion to separate the items, and lost —
aves 17.
' When the bill was ordered to a third reading.
MoNHAY, April 26.
An engrossed bill making appropriations for the
support of Government, for the year one thousand
eight hundred and two, was read tlws third time,
and passed.
An engrossed bill to repeal so much of the acts,
the one entitled "An act establishing a Mint, ana
regulating the coins of the United States," the
other an act, entitled " An act supplementary to
the act establishing a Mint, and regulating the
1247
H. OF R.
HISTORY OP CONGRESS.
1248
Judiciary System,
ApRm 1802.
coiosof the UDited States," as relate to the estab-
lishment of a Mintj was read the third time, and
passed.
A message from the Senate informed the House
that the Senate have passed the bill, entitled " An
act making provision for the redemption of the
whole of the public debt of the United States,"
with several amendments ; to which they desire
the concurrence of this House.
The House then proceeded to consider the said
amendments of the Senate : Whereupon,
Besolvedj That this House doth agree to the
same.
The House resolved itself into o Committee of
the Whole on the bill sent from the Senate^ en-
titled '^ An act supplementary to an act. entitled
' An act for the encouragement of learning, by se-
curing the copies of maps, charts, and books^ to
the authors and proprietors of such copies, durmg
the time therein mentioned,' and extending the
benefits thereof to the arts of designing, engraving,
and etching historical and other prints;'^ and,
after some time spent therein, the Committee rose
and reported the bill without amendment.
Ordered, That the said bill be read the third
time to-morrow.
A message was received from the Senate in-
forming the House that they had passed the bill
for abolishing the Board of Commissioners of the
City of Washington, with certain amendments.
On motion, it was
Resolved, That the Secretary of the Treasury
be required to make report and return to this
House, in the first week of the next session of
Congress, of the abstracts and lists of the valuation
of lands and houses made in the several States,
pursuant to the act " to provide for the valuation
of lands and dwelling-houses, and the enumeration
of slaves within the United States*," and that he
cause two hundred copies of the said report and
return to be previously printed, and transmitted,
for the use of Congress, at the time aforesaid.
The House, resolved itself into a Committee of
the whole House on the bill to incorporate the
inhabitants of the City of Washington, in the
District of Columbia ; and, after some time spent
therein, the Committee rose and reported several
aijiendments thereto ; which were severally twice
read, and agreed to by the House.
Ordered, That the said bill, with the amend-
ments, be engrossed, and read the third time
to-morrow.
A Message was received from the President
of the United States, in relation to the settlement
of limits &.C with the State of Georgia. The
Message, and papers transmitted therewith, were
read, and ordered to lie on the table.
Mr. John Taliaferro, junior, from the Com-
mittee appointed, presented a bill additional to
and amendatory of, an act, entitled ^^ An act con-
cerning the 'District of Columbia ; which was
twice read and committed to a Committee of the
whole House to-morrow.
A message from the Senate, informed the House
that the Senate have passed the bill, entitled " An
act for the relief of the widows and orphans of
certain persons who have died, or may hereafter
die, in the Naval service of the United States,"
with several amendments; to which they desire
the concurrence of this House.
The House took up the amendments of the Sen-
ate to the bill abolishing the Board of Commis-
sioners of the City of Washington. &c.
One of these amendments contained a number
of distinct sections for establishing a company for
cutting a canal to unite the main Potomac with
the Eastern Branch thereof. Committed.
JUDICIARY SYS'TEM.
A message was received from the Senate in-
forming the House, that they had agreed to all the
amendments made by the House to the bill ^to
amend the Judicials ystem of the United States,"
excepting one, viz: that which struck out the sec-
tion that transferred the nomination of commis-
sioners of bankruptcy from the district judges to
the President, on which they insist.
Mr. Giles moved that the House should recede
from the amendment.
This motion was supported by Messrs. Talia-
ferro, ELMENnoRF, Holland, S. Smith, and
MfTCHiLL, and opposed by Messrs. Batabd, Gris-
wold, Goddard, and Mott.
The question «was taken by yeas and nays, and
carried — yeas 45, nays 27, as follows.
Yeas — Willis Alston, John Bacon, Theodoms Bai-
ley, Phanuel Bishop, Richard Brent, Robert Brown,
Thomas Claiborne, Matthew Clay, John Clopton, John
Condit, Richard Cutts, John Dawson, Willism Dick-
son, Lucas Elmendorf, Ebenezer Elmer, William
Eustis, John Fowler, William B. Giles, John A. Han-
na, Daniel Heister, Joseph Heister, William Helms,
James Holland, David Holmes, Michael Leib, John
Milledge, Samuel L. Mitchill, Thomas Moore, Thomas
Newton, jr., John Randolph, jr., John SmUie, Israel
Smith, John Smith, of Virginia, Samuel Smith, Heniy
Southard, Richard Stanford, Joseph Stanton, jr., John
Stewart, John Taliaferro, jr., David Thomas, Philip
R. Thompson, Abram Trigg, Philip Van Corllandt,
John P. Van Ness, and Isaac Van Home.
Nats — ^John Archer, James A. Bayard, John Camp-
bell, Manasseh Cutler, John Davenport, Thomas T.
Davis, Abiel Foster, Calvin Goddard, Edwin Gray,
Roger Griswold, Seth Hastings, Archibald Henderson,
Benjamin Huger, Lewis R. Morris, Thomas Morris,
James Mott, Anthony New, Joseph H. Nicholson,
Nathan Read, William Shepard, John Smith, of New
York, Benjamin Tallmadge, Samuel Tenncy, Thomas
Tillinghast, John Trigg, Peleg Wadsworth, and Lem-
uel Williams.
Tuesday, April 27.
An engrossed bill to incorporate .the inhabitants
of the City of Washington, in the District of Co-
lumbia, was read the third time: Whereupon a
motion was made, and the question being put, to
amend the bill at the Clerk's table, by adding to
the end thereof a new section, in the words follow-
ing, to wit :
** Provided always, and be it further enacted^ That
no tax shall be imposed by the City Council on real
property in the said city, at any higher rate than three
1249
HISTORY OF CONGRESS.
1250
April, 1802.
District of Columbia.
H. OF R.
quarters 9f one per centum on the assessment valuation
of such property :"
It was unanimously resolved in the affirmative.
Ordered, That the said amendment be present-
ly engrossed, and, together with the bill, be read
the third time. The said amendment being brought
ID engrossed, the bill, as amended, was read the
third time ; and, on the question that the same
do pass, it was resolved in the affirmative.
The bill sent from the Senate, entitled '*An act
supplementary to an act, entitled *An act for the
encouragement of learning, by securing the copies
of maps, charts, and books, to the aythors and pro-
prietors of such copies during the times therein
mentioned,' and extending the benefiu thereof to
the arts of designing, engraving, and etching his-
torical and other prints," was read the third time;
and on the question that the same do pass, it was
resolved in the affirmative.
A Message was received from the President of
the United States, transmitting a copy of the Con-
vention with Great Britain. The Message was
read, and, together with the Convention transmit-
ted therewith, ordered to be referred to the Com-
mittee of Ways and Means.
Mr. Samuel Smith, from the committee ap-
pointed the seventh of January last, on the me-
morial of Evan Thomas and others, and to whom
was referred, on the twenty-seventh of the same
month, a Message from the President of the Uni-
ted States relative to trade and intercourse with
the Indian tribes, reported a bill to revive and con-
tinue in force an act, entitled ^'An act for estab-
lishing trading-houses with the Indian tribes ;'-
which was read twice and ordered to be engrossed
and read the third time to-day.
The House proceeded to consider the amend-
ments proposed by the Senate to the bill, entitled
"An act for the relief of the widows and orphans
of certain persons who have died, or may hereaf-
ter die. in the Naval service of the United States :"
Whereupon,
Resolved, That this House doth agree to the
said amendments.
An engrossed bill to revive, and continue in
force, *'An act for establishing trading[-houses with
the Indian tribes," was read the third time and
passed.
A message from the Senate informed the House
that the Senate have passed a bill, entitled '*An
act to extend, and continue in force, the provisions
of an act,. entitled 'An act giving a right of pre-
emption to certain persons who have contracted
with John Cleves Symmes, or his associates, for
lands lying between the Miami rivers, in the Ter-
ritory Northwest of the Ohio, and for other pur-
poses ;" to which they desire the concurrence of
this House.
The said bill was read twice and committed to
a Committee of the Whole House to-morrow.
Mr. MiTCHiLL, from the committee appointed
on so much of the President's Message as relates
to naval sites, dbc., made a further report. The
report concludes as follows :
** The committee find that, prior to the fourth of March
1801 , the sum of one hundred and ninety-nine thousand
7lh Con. — 40
and thirty dollars, and ninety-two cents, have been ex-
pended in purchasing navy yards and making improve-
ments upon them, without any law authorizing the
purchase, or any appropriation of money, either for pur-
chase or improvements.*'
DISTRICT OF COLUMBIA.
The House went into Committee of the Whole
on the bill respecting the District of Columbia.
[This bill vests certain chancery powers in the
courts of the District — alters the periods of holding
the courts viz : for Washington county to be held
in July and December ; for Alexandria county
in June and November; directs that no person
shall be held to bail unless resident for two months
in the Territory — directs that no execution on the
person of the debtor shall be issued for judgments
under twenty dollars, but that all such process shall
hereafter go against the effects of the debtor, ex-
ecuted by the constable, under reduced fees; gives
to the Corporation of Greorgetown the power of
taxing town lots for specified purposes ; repeals so
much of acts of 1801, as provide for the com-
pensation of jurors and witnesses, with other pro-
visions.]
Mr. Griswold moved to strike out the fourth
section, which directs that no person shall be held
to bail unless resident for two months in the Ter-
ritory.
This motion was supported by Messrs. Griswold,
Henderson, Bayard, and Nicholas ; and oppos-
ed by Mr. Taliaferro. The motion wasagreed to.
Mr. Griswold moved to strike out the section,
which saves the person from arrest for debts under
twenty dollars.
The Committee then rose and reported the bill.
Mr. Griswold moved to recommit it. The
motion was csgrried, and the House adjourned.
Wednesday, April 28.
The Speaker laid before the House a letter
from the Secretary of the Treasury, enclosing his
report on the memorial of Ferdinand Mullenheim,
referred to him, by order of the House, on the
fifteenth ultimo ; which were read, and ordered
to lie on the table.
Mr. John Taliaferro, junior, from the com-
mittee to whom was yesterday recommitted the
bill additional to, and amendatory of an act en-
titled "An act concerning the District of Colum-
bia," as amended by the Committee of the Whole
House, reported an amendatory bill ; which was
read twice, and ordered to be engrossed and read
the third time to-day.
A message from the Senate informed the House
that the Senate have passed the bill, entitled "An
act to repeal, in part, the act, entitled 'An act re-
gulating foreign coins, and for other purposes,"
with two amendments; to which they desire the
concurrence of this House,
The House proceeded to consider the said
amendments: Whereupon,
JReaolved, That this House doth agree to the
same.
The House resolved itself into a Committee of
the Whole on the amendments of the Senate, to
1251
HISTORY OF CONGRESS.
1252
H. OP R.
Proceedings.
April, 1802.
add nine new sections to the end of the bill, en-
titled ''An act to abolish the Board of Conamis-
sioners in the City of Washington, and to make
provision for the repayment of loans made by the
State of Maryland, for the use of the city ;" and,
after some time spent therein, the Committee rose
and reported to the House their agreement to the
same, with several amendments ; which were read,
and partly considered.
Ordered^ That the farther consideration of the
report of the Committee of the Whole House be
postponed until to-morrow.
An engrossed bill additional to, and amendatory
of, an act, entitled *'An act concerning the District
of Columbia," was read the third time and passed.
A petition of Thomas Cooper, of the county of
Northumberland, in the State of Pennsylvania,
was presented to the House and read, setting forth
that, in the month of April, eighteen hundred, he
was tried and condemned at Philadelphia, before
Samuel Chase and Richard Peters, judges of the
circuit court of the United States there sitting,
for having written and published a libel upon the
political character and conduct of John Adams,
the then President of the United States ; and was
thereupon adjudged to pay a fine of four hundred
dollars, and to suffer an imprisonment of six
months ; which punishment he accordingly under-
went; that he apprehends the said trial, condem-
nation,and puni.shment, were unjust: first, because
tfie law, commonly called the Sedition law, under
which he was indicted, was passed in direct op-
position to the letter and the spirit of the Consti-
tution of the United States ; and secondly, because
the said judges did not only take for granted the
constitutionality of the saici law, but did unjustly
and improperly refuse to grant hin) sl subpoena ad
testificanduTHj directed to the said John Adams ;
and therefore praying such redress as the wisdom
of Co >gress shall deign to bestow.
Mr. Griswold moved to reject the prayer of
the petition.
Mr. GtLEs moved to postpoiie the consideration
of the petition till the third Monday in November.
On this motion a debate ensued, in which Mr.
Giles and Mr. Randolph supported, and Mr.
Griswold and Mr. Bayard opposed the motion.
The question on postponement was carried, by
a large majority.
Thursday. April 29.
Mr. Nicholson, from the committee appointed
on the fourteenth of December last, to inquire and
report whether moneys drawn from the Treasury
have been faithfully applied to the objects for
which they were appropriated, and whether the
same have been accounted for, and to report, like-
wise, whether any further arrangements are ne-
nessary to promote economy, enforce adherence
to legislative restrictions, and secure the account-
ability of persons entrusted with the public money,
made a report ; which was read, and ordered to
lie on the table.
The House resolved itself into a Committee of
the Whole on the bill, entitled ^^ An act to extend
and continue in force the provisions of an act
entitled ' An act giving a right of pre-emption to
certain persons who have contracted with Jobs
Cleves Symmes, or his associates, for lands lying
between the Miami rivers, in the Territory Korib-
west of the Ohio, and for other purposes f and.
after some time spent therein, the Committee
rose and reported progress.
A message from the Senate informed the Hoose
that the Senate have passed the bill, entitled "Ad
act to enable the people of the^astern division of
the Territory Northwest of the river Ohio to form
a constitution and State government, and for the
admission of such State into the Union, on an
equal footing with the original States, and for
other purposes," with several amendments; to
which they desire the concurrence of this Hoose.
The House proceeded to consider the amend-
ments of the Senate to the bill stated in the fore-
going message: Whereupon,
Resolved^ That this House doth agree to all the
said amendments.
A message from the Senate informed the House
that the Senate hare also passed the bill, entitled
''An act to establish the compensations of the
officers employed in the collection of the duties
on imports and tonnage, and for other purposes.^
with several amendments; to which they desire
the concurrence of this House.
The House proceeded to consider the amend-
ments of the Senate to the bill last mentioced.
and, the same beinff read, were agreed to.
Mr. Randolph, from the Committee of Waja
and Means, presented a bill making an appropria-
tion for carrying into effect the Convention b^
tween the United States and the King of Great
Britain ; which was read twice, and committed
to a Committee of the whole House this day.
The House accordingly resolved itself tnto the
said Committee ; and, after some time spent there-
in, the Committee rose and reported severalamend-
ments thereto; which were severally read and
agreed to.
Ordered^ That the said bill, with the amend-
ments, be engrossed, and read the third time this
day.
The House resumed the consideration of the
amendments reported yesterday from the Com-
mittee of the Whole to the amendments of the
Senate to the bill, entitled *' An act to abolish the
Board of Commissioners in the City of Washing-
ton, and to make provision for the repayment of
loans made by the State of Maryland for the use
of the city;*' and the same being Vead were
agreed to.
Resolved, That this House doth agree Xo the
amendments of the Senate to the said bill.
On motion, it was
Ordered, That the committee to whom was
referred, on the twenty-sixth of February last, a
letter from William Henry Harrison, Governor
of the Indiana Territory, enclosing certain reso-
lutions of the grand jury of the county of Knox
in the said Territory, asserting the rightful claim
of that Territory to the Island of Michilimackinac.
and its dependencies, as an integral part oi the
1253
HISTORY OF CONGRESS.
1254
April, 1802.
Proceedings,
H. opR.
said Territory, in opposition to the claim of the
Govern meat of the Northwestern Territory, to
the same, be discharged from further proceeding
thereon.
Mr. John Taliaferro, Jr., from the Committee
appointed to inquire whether any, and what,
amendments are necessary in the existing laws
and government of the Territory of Columbia,
and to whom were also reierred sundry memo-
rials and petitions of the inhabitants or the said
Territory, made a report thereon : Whereupon,
Ordered, That the Committee be discharged
from the further consideration of the said petitions
and memorials.
An engrossed bill making an appropriation for
carrying into e£fect the Convention between the
United Slates and the King of Great Britain was
read the third time, and passed.
Ordered, That tne committee to whom was re-
ferred, on the eighteenth of January last, the peti-
tion of John Cleves Symmes, be discharged from
further proceedings thereon.
Friday, April 30.
A message from the Senate informed the House
that the Senate have passed the bill making ap-
propriations for the support of Government for
the year one thousand eight hundred and two,
with several amendments ; to which they desire
the concurrence of this House.
The House proceeded to consider the amend-
ments proposed by the Senate to the bill last men-
tioned, and, the same being read, were agreed to.
Resolved^ That the President of the Senate and
Speaker of the House of Representatives be au-
thorized to close the present session by adjourning
their respective Houses on Saturday, the first of
May.
Ordered, That the Clerk of this House do carry
the said resolution to the Senate, and desire their
concurrence.
The House aeain resolved itself into a Commit-
tee of the Whole on the bill sent from the Senate,
entitled ^' An act to extend and continue in force
the provisions of the act, entitled ^ An act giving
a right of pre-emption to certain persons who
have contracted with John Cleves Symmes, or
his associates, for lands lying between the Miami
rivers, in the Territory Northwest of the Ohio,
and for other purposes."
The said bill was then read the third time, and,
OQ the question that the same do pass, it was re-
solved in the affirmative.
Resolved, That the Postmaster General be re-
quested to establish a post office at or near the
Capitol, on or before the next session of Congress.
Mr. Elmendorf, from the committee to whom
was committed the bill from the Senate to em-
power John James Dufour, and his associates, to
purchase certain lands, reported that the commit-
tee had had the same under consideration, and
made no amendment thereto.
The said bill was then read the third time, and,
on the question that it do now pass, it was resolved
in the affirmative.
Ordered, That the further consideration of the
bill to provide more effectually for the due appli-
cation of public money, and for the accountability
of persons entrusted therewith, be postponed until
the third Monday in November next.
Ordered, That the Airther consideration of the
report of the committee to whom was referred, on
the nineteenth of January, the petition of Memu-
can Hunt and others, addressed to the General
Assembly of North Carolina, and, also, sundry res-
olutions of the said Assembly, relative to a claim
for the. value of certain lands in the State of Ten-
nessee, be postponed until the third Monday in
November next.
The House resolved itself into a Committee of
the Whole on the report of the Committee of
Commerce and Manufactures, of the eighth of
March last, on the memorial of Henry Messonier ;
and, after some time spent therein, the Committee
rose and reported a resolution thereupon ; which
was twice read, and agreed to by the House, as
follows:
Resolved, That there be paid to Henry Messo-
nier, frond any money in the Treasury, not here-
tofore appropriated by law, the sum of six hun-
dred and fifty-five dollars and ninety cents, being
the amount of duties paid by him on fourteen
hogsheads of coffee, imported in the ship Paca-
reau, Captain Latour, and entered at the port of
Baltimore, on the eighteenth day of Februaryi
one thousand seven hundred and ninety^four,
which sum had also been paid, on the same four-
teen hogsheads of coffee, by Champaign and
Deyme.
Ordered, That a bill or bills be brought in, pur-
suant to the said resolution ; and that the Com
mittee of Commerce and Manufactures do prepare
and bring in the same.
A message from the Senate informed the House
that the Senate have passed the bill making an
appropriation for the support of the Navy ol the
Udiled States, for the year one thousand eight
hundred and two, with several amendments; to
which they desire the concurrence of this House.
The House proceeded to consider the said
amendments, and the same being read, wer^
agreed to.
Mr. Samuel Smith, from the Committee of
Commerce and Manufactures, presented a bill for
the relief of Henry Messonier ; which was read
twice, and commuted to a Committee of the
whole House immediately.
The House accordingly resolved itself into the
said Committee ; and, after some time spent there-
in, the Committee rose and reported the bill with-
out amendment.
Ordered, That the said bill be engrossed, and
read the third time this day.
An engrossed bill for the relief of Henry Mes-
sonier was read the third time, and its further con-
sideration postponed until the third Monday in
November next.
Resolved, That the Clerk be directed to procure
a clock for the use of the House of Representa-
tives, and cause it to be placed in some conveni-
ent part of the Representatives' Chamber.
1255
HISTORY OF CONGRESS.
1256
H. OF R.
Disbursement of Public Moneys,
Mat. 18Q2.
A message from the Senate informed the House
that the Senate have passed the bill to provide for
the establishment of certain districts, and therein
to amend an act, entitled "An act to regulate the
collection of duties on imports and tonnage, and
for other purposes," with an amendment ; to which
they desire the concurrence of this House.
The House proceeded to consider said amend-
ment, and the same being read, was agreed to.
Ordered^ That the Clerk of this House do ac-
quaint the Senate therewith.
Satohdat May 1.
Ordered^ That there be a call of the House on
Monday next, at ten o'clock in the forenoon.
A message from the Senate informed the House
that the Senate have agreed to the resolution of this
House, of the thirteenth ultimo," authorizing an
adjournment of the two Houses of Congress," with
an amendment; to which they desire the con-
currence of this House.
The House proceeded to consider the said
amendment of the Senate, and the same being
read, was agreed to.
A message from the Senate informed the House
that the Senate have agreed to an amendment and
modification of the amendments depending be-
tween the two Houses to the bill, entitled "An
act further to alter and establish certain post roads."
agreeably to a report thereon, made this day to
the Senate, by the conferees appointed on tneir
part.
The House proceeded to consider the message
of the Senate of this day, and the report of the
joint committee of conference, transmitted there-
with, on the subject-matter of the amendments de-
pending between the two Houses to the bill, entitled
"An act further to alter and establish certain post
roads:" Whereupon,
Resolved^ That this House doth concur with
the Senate in their agreement to the amendment
and modification of the said amendments, as pro-
posed by the Joint Committee of Conference
thereon.
DISBURSEMENT OF PUBLIC MONEY.
Mr. Griswold. — Notwithstanding the late pe-
riod of the session, I feel it my duty to call the
attention of the House to a subject of some im-
portance, and which has not, during the session,
met with any particular consideration. That
subject is, the report of the select committee, who
were appointed to investigate, " whether moneys
* drawn from the Treasury have been applied to
' the objects for which they were appropriated."
I should consider myself inexcusable for intro-
ducing this subject at the present time, when the
session is to continue only one day longer, and
the usual hour of adjournment has nearly arrived,
if it had been possible to have called it up at an
earlier hour ; but it is well known that, although
the committee were appointed at a very early pe-
riod of the session, they made their report only
the day before yesterday, and it has appeared on
our tables in a situation to be examined for the
first time this morning.
Il may, perhaps, be inquired that, being a mem-
ber of the committee, if it was my intention to
bring the report under discussion, it would not hare
been mydutytohave submitted some motioD to
the House as soon as the report was first read at
the Clerk's table; but if it nad been possible for
me to have submitted a motion, it is obvioas from
the length of the report, and the detail which it
contains, that it would have been impossible for
gentlemen to have understood the subject with-
out having the report in some shape before them.
But the fact really is, that, although a member of
the committee, I have known little more aboat
the report than any other member of the House.
The course which this subject took in the com-
mittee, it may be necessary, in a very concise
manner, to explain.' The whole committee at-
tended the investigations at the Executive offices,
but the minority had no knowledge of the ioten-
tions of the majority; and, for oae, I declare that,
although I attended the committee very regular-
ly in their public investigations, yet I did oot re-
ceive the smallest hint uf the intentions of the
majority — what report they intended to make, or
whether any, during the present session, until
two days before the report was made to the Hoa>e;
on which day the committee were called together
an hour before the meeting of the House, to agree
upon a report. When we met, the report was
presented to us, already drawn up in its present
shape, and we were requested to hear it read, to
make our objections or give our approbation.
This was certainly an unusual and a very short
mode of making a report, upon a subject which
had been deemed sufficiently important to engage
the attention of the committee for nearly fire
months. We accordingly had the report read,
and although it was impossible, from this hasty
examination, to go into much detail, yet a single
reading was sufficient to enable us to discover
that the report was excessively erroneous. Some
of the errors were mentioned, and, for reasons
which I will not take up the lime of the House at
this time to detail^ the subject was postponed un*
til the next morning, although the majority had
designed to make their report on that day. la
the mean time, the minority requested copies of
the report, that they might deliberately examine
every part of it, and compare it with their recol-
lection of facts. These copies it was agreed should
be furnished, but, in consequence, I prestime, of
the length of the report, they were 'not procured,
and the minority had no opportunity of examin-
ing the report with any attention. When the
committee met the next morning, the subject was
again postponed, in consequence of a discussion
upon one detached part of the report, and the re-
port was not of course delivered to the House un-
til the morning following, when it appeared in its
original form; I mean in every essential point, i
have mentioned these circumstances because I
think it important that they should be known, and
because I believe they will satisfy the House thai
it has not been in the power or the minority of
the committee to enter into a discussion of there-
port, until they obtained, in common with the
1257
HISTORY OF CONGRESS.
1268
Mat, 1802.
Disbursement of Public Moneys,
H. ofR.
other members of the House, the printed copies
this morning.
I will likewise add a further fact, whilst I am
explaining the proceedings of the committee. It
is : that three members of the seven who com-
posed the committee, were decidedly opposed to
the report in all its partial parts ; and the report
must be considered as the act of a bare majority.
The House will be satisfied, I trust, by the reasons
which I have stated, that it has not been my fault
that the motion which I am now about to submit
has been delayed to this late hour.
My motion is, that the report be recommitted
to a select committee, for the purpose of correct-
ing the manv errors which it contains ; and I
must be indulged in stating, as concisely as pos-
sible, some of the reasons on which I ground this
motion.
The report is evidently calculated to impress
the public mind with unfavorable sentiments re-
specting the conduct of the late Administration,
and particularly the conduct of several individ-
nals who have been, and still are, held in high
estimation by a numerous class of well-informed
and virtuous citizens. This impression ought not
to be made,.because the real facts, which exist in
relation to every transaction to which the report
alludes, can warrant no such impression.
The report, I shall attempt to show, is exces-
sively erroneous, both in the facts and the infer-
ences which it states. I wish not, however, to be
understood, by any remarks which I may make,
to implicate the committee ; I have nothing to do
with the motives which regulated their conduct;
I presume they were virtuous, and that when thev
calmly examine their own proceedings, they will
readily consent to correct their errors.
It will be impossible at this time, to go as fully
into an examination of the report as I could wish,
and I shall be compelled, from the peculiar situ-
ation of the House, to confine my^ remarks to those
parts which are the most prominent.
The first object which has received the animad-
version of the committee, is the expense of re-
movinjT the Executive officers and their clerks
from Philadelphia to the seat of Government.
This expense, which amounted to $32,872 34, the
committee say, ^* was drawn from the Treasury
and expended without anv legal authority." This
is a siroDg expression, and ought to be very clear-
ly supported, to justify the committee in uttering
it. Let us, however, examine the authority under
which the money was drawn from the Treasury, in
consequence of a decision of the accounting offi-
cers of that department, and it will not be doubt-
ed but that the law has made it the duty of those
officers to decide this very question ; nor will it
be contended that the decisions of the accounting
officers, fairly and honestly made, are not a suffi-
cient justification for the payment of all public
accounts. How, then, can the committee say
that these moneys were paid without any legal
authority, when it is certain that these accounts
of expense were regularly presented and allowed
by the tribunals who were authorized and di-
rected by law to decide upon them ? I should
ask the committee, under what other authority
than the decisions of the accounting officers,
can money, in strictness, ever be legally paid
at the Treasury? It is not, certainly, in the
power of the House of Representatives to audit
the public account or to reverse the decisions of
the accounting officers, much less are a commit-
tee of the House clothed with any such powers.
If the committee, instead of deciding over the
head of the regular tribunals, hud told us the
whole truth upon this point — if they had explaia-
ed the power of the Treasury Department, and
stated the fact, that this department had regularly
admitted and paid the accounts, it is certain that
the opinion which they have reported would have
appeared without any foundation ; and although
it might remain a speculative question with indi-
viduals, and some might be of opinion that the
decision of the Treasury was riffht, and others
might believe it to be wrong, yet all piEiriies would
concur in the opinion that the decision was con*
elusive, and the money paid in consequence of it^
was paid under a legal authority.
If, however, we indulge ourselves in revising
the Treasury decision upon this question, I am in-
clined to believe that we shall find it correct. The
law of 1790, which fixes the permanent seat of
Grovernment, provides, " that the offices attached
^ to the seat of Government shall be removed to
' the District of Columbia on the first day of De-
* cember, 1800, by their respective holders," and
declared that the necessary expense of such re-
moval should be defrayed out of the duties on im-
posts and tonnage. By this law, the holders of
the offices were directed to remove them, and
the question is, how and to what extent was the
removal to be made ? It will be admitted, I pre-
sume, that the offices were to be removed in an
efficient manner, that is to say, in such a form aa
to enable the Executive departments to periorm
their duties without delay at Washington. The
officers, in removing their offices, were certainly
obliged to remove themselves, for ihey held the
offices in their own persons, and the operation
could not be performed without their personal re-
moval. Nor could the offices be removed in such
a form as to pnerform their duties at the seat of
Government without carrying along with thenn
the clerks ; the clerks were attached to the officesi
and without them, the offices could not be said to
be efficiently removed. It would then, I thiak^
result from this view of the subject, that the direc-
tion of the statute to remove the offices, necessa-
rily gave an authority to remove every individu-
al connected with the offices, and whose services
were necessary for transacting the public busi-
ness. And if the i ndi viduals were to oe removed^
I should presume that no doubt could exist but
that they roust and ought to be removed in such
a manner as to render their sit nation comfortable
in this place — I mean with their families and fur-
niture ; and whether they transported a trunk too
much or not, would be an inquiry too contempti*
ble to occupy the attention ofthe House.
What induces me to think still more favorably
of the decision of the Treasury, is the strong equir
1259
HISTORY OF CONGRESS.
1260
H. OP R.
Disbursement of Public Moneys,
May, 1802.
ly on which the decision rests. It is, at this lime,
well understood, and, indeed, settled, by the act
of the present session, that the allowances to the
Executive officers and clerks was fixed upon the
principle of their remaining permanently at one
place, and nothing has been, or now is, included
m the regular compensation of those officers for
the extra expense of travelling on public business
from one place to another; such extra expense
must, in the nature of things, be compensated by
extra allowances ; and, although it is true, as the
committee say, that the officers and clerks were at
this time receiving their pay from the Govern-
ment, yet they were only receiving the usual com-
pensation, which was not higher than the same
arades of officers receive at this time. Can it,
tnen, be doubted, when the Qovernment required
these officers to incur the extraordinary expense
of removing one hundred and fifty miles, with
their families, that the extra expense should be
discharged by Government, whether that ex-
pense consisted of losses, resulting from the re-
moval, or charges of travelling? Finding, then,
the legal decision and the equity of the case so
strongly against the committee, I think myself
warranted m saying that this part of the report is
erroneous.
It is further to be remarked, that the committee
have not explicitly declared by whom these pay-
ments were made, but the report is so expressed
as to leave no doubt that the committee intended
it should be understood that the payments were
all made under the former Administration, where-
as the fact I believe to have been that, although
a greater proportion of them were made under
the former Administration, yet that some pay-
ments were since made ; and if my information is
correct, and I trust it will be found so, for it is
derived from the most authentic source, one ad-
vance was made by the present Secretary of the
Treasury by a warrant on the Treasury, even be-
fore the account of the individual was settled or
allowed. This circumstance is important, inas-
much as it furnishes a recent precedent to justify
the former decision, and will mduce the commit-
tee to examine their proceedings with moi'e cau-
tion, when they find that, in condemning the for-
mer Administration, they are at the same time im-
plicating their friends ; for it will not be contend-
ed, I presume, that if, as the committee say, no
authority existed for this expenditure, the prece-
dent of the former Administration could justify
the advance made by the present Secretary.
The next important object which the report
has noticed, is the accounts in the War and Navy
Departments. Upon this subject the committee
•ay, there remains in the War Department more
than three millions of dollars '^ unaccounted for
or not yet settled," and in the Department of the
Navy more than four millions, ^* an unaccounted
for or unsettled balance."
This statement, although it does not contain
any explicit charge against those departments, yet
it is so expressed as to countenance those infa-
mous falsehoods which have appeared in certain
newspapers, charging the departoients with the
embezzlement of the public money. A charge
which the committee certainly did not intend to
countenance. The report ought to have been
more explicit upon this point; the commiitee
ought to have explained what they intended bj
"balances unaccounted for or unsettled." I take the
liberty of declaring that, although in point of form
it may be true, that these sums remain unaccount-
ed for. yet, in fact, nothing comparable to it ex-
ists. The mode in which business is transacted
in the offices of the accountants of the War and
Navy, I understand to be this : whenever a sunt
of money is advanced to an individual, be is im-
mediately charged with it ; and although it may
have been advanced for services actually render-
ed, or supplies furnished, yet nothing is passed
to his credit till a voucher is produced for ererr
item in the account, and the account, ahhoaga
nothing is due upon it, remains unsettled, and. in
the sense of the committee, a balance unaccount-
ed for. In this manner, these millions mentioned
by the committee are principally made up. For
instance, in the War Department, the account of
the Gluartermaster Greneral remains unsettled to
the amount of nearly nine hundred thousand dol-
lars; his account, however, has been rendered,
accompanied, as I understood, by vouchers T^iiieh
cover the whole amount^ but in consequence of
some dispute or uncertainty respecting a small
part of the account, it remains open, and the whole
of this large sum has gone in to maiieapartof
the balance unaccounted for in the War Depart-
ment. Other accounts are in the same situation,
and it is from such facts that the commiitee hare
thought themselves justified in declaring that these
balances remain unaccounted fur.
In the Department of the Navy, although, from
the causes which I have mentioned, there remains
a great number of open accounts, amounting to
more than four millions of dollars, yet the ac-
countant declared to the committee that vouchers
had been transmitted to the office, covering the
whole sum, except about five hunared thousand
dollars ; but the accounts were not settled, nor the
vouchers carried to the credit of the particular
accounts, because the mode of settlement did not
warrant the entry of any credit until every iicm
was covered by a voucher. The accountant far-
ther declared, that this sum of five hundred thoa-
sand dollars consisted principally of moneys re-
cently advanced for the current service, for which
voucners were constantly coming in. and that on
winding up the whole account of that department,
he was persuaded that Government would not
sustain losses to exceed ten or twelve thousand
dollars.
Under such circumstances, can it be imagined
that the committee were justified in talking about
millions unaccounted for? Or, if they thoiight
proper to do it, should they omit to explain, in a
more ample and satisfactory manner, their mean-
ing ? Ought not the facts which I have mention-
ed, on every principle of fairness and truth, to
have been annexed to that report ! If this had
been done, it would have appeared that the dis-
bursements of the War and Navy Departments
1261
HISTORY OF CONGRESS.
1262
May, 1802.
Disbursement of Public Moneys.
H. opR.
were made with so much attentioa and good for-
tune; that the losses of the Government have been
less than are generally experienced by merchants
in transactions of equal extent.
It is said, that the documents which attend the
report will explain this point. I must be permit-
ted to say that the report will be published in ev-
ery newspaper, (for which purpose it appears to
be principally intended^) whilst the voluminous
documents will be very much confined to the mem-
bers of this House, and never read by those who
will read the report.
Again, the committee say that four navy yards
were purchased without authority, and the money
misapplied which was naid for them. In my
judgment, thb is one or the most extraordinary
opinions ever pronounced. The facts which gave
rise to the purchase of the navy yards were as
follows : In the year 1799, Congress authorized
by law the building of six 74-gun ships, and one
million of dollars was then appropriated for that
object, and for building six sloops-of-war. The
Secretary of the Treasury found that the commit-
tee ouffht to have understood that ships could not
be built either in the air or upon the water, and as
he was directed to build the ships, that he must, of
course, procure land to place them upon, and that
the land must be either purchased or hired. He
found that there was not a navy yard within the
United States calculated for building ships-of-the-
line, and that the expense of preparing yards upon
private property would be lost the moment the
ship was launcned, and of course that this would
be Sad economy. Experiencehad likewise taught
him, that the better mode would be to purchase
the ground, as it would then remain at the control
of the Government, so long as it was wanted, and
the improvements would be saved. This course
was accordingly pursued, and I believe that few
gentlemen, except the committee, will conclude
that it was not the wisest and best. But whether
it was the best course or not, it was certainly au-
thorized by law, because it can never be seriously
doubted, whether a law which directs a thing to
be done, does authorize the agents to be employed
to do everything which becomes necessary for ac-
complishing the object. The laws which have
authorized the building of ships have certainly
empowered the public agents to purchase timber
copper, cordage, and every other necessary mate-
rial, and yet no law for those objects has ever
named any one of tho^e articles. On the same
principle, the law which directed the building of
these particular ships, necessarily authorized the
public agent to procure the ground to place them
upon, although it was not said, wnether the
ships should be built upon the water or upon the
land.
But there has been one omission in this part of the
report, which, on every principle of fairness ought
to be connected with it, and for which purpose
the report ought to be recommitted : the omis-
sion oi the letter of Mr. Stoddert. late Secretary
of the Navy, explanatory of the purchase made
by him of the navy yards, addressed to the com-
mittee, in answer to an application made by them
upon this subject. This letter contains, in my
opinion, a complete justification of that transac*
tion, and was so viewed by the minority of the
committee, who urged that it might, at least, be
included in the report ; but, to our astonishment,
the minority refused this justice to the man whom
their report had implicated. This opinion of the
majority, in respect to the propriety of including'
Mr. Stoddert's letter, I must believe, will remain
a solitary one, for I can scarcely imagine it possi-
ble that any other gentleman in this House wouid
have refused, when they presented a>charge against
this gentleman with one hand, to offer with the
other his vindication, written at their own re-
quest. If, however, the motion to recommit
should prevail, I will then move an instruction to
the committee, which will produce Mr. Stoddert's
letter.
The committee hare likewise thought proper,
in general terms, to censure the expenditure for
erecting the public buildings on the banks of the
Schuylkill, near Philadelphia. They do not say
whether the money expended upon that object
was authorized or unauthorized; they only say
that the expense, which amounted to about one
hundred and fifty thousand dollars, could not be
justified. Without troubling the House with any
comments upon the propriety of this conduct of
the committee in passing the bounds which their
appointment had limited, and erecting themselves
into a board of censors, to condeYnn every expen*
diture which did not please them, whether author*
ized or not, I must be permitted to say, that noth-
ing, in my judgment could excuse them, if they
took this course, in suppressing the facts which
led to the erection of those buildings.
That the expense was justified by law, I pre*
sume cannot be doubted, when the object and the
nature of the appropriations for the Military Es-
tablishment are considered. And as to the extent
of the expense, it is a point about which gentle-
men may probably differ in opinion. For my own
part, I readily acknowledge that I am not a com-
petent judge, nor do I believe (I speak with great
deference) that the majority of the committee
possess sufficient experience to decide the ques-
tion. The former Secretary of War, who com-
menced the buildings, (Mr. McHenry,) was cer-
tainly a man of liberal mind and of large and ex-
tensive views, and disposed to found every perma-
nent establishment upon a scale which snould in
some measure comport with the future prospect
of this country, and prove them to be the estab-
lishments uf a nation, and not of a petty corporar
tion. The circumstances which induced the War
Department to commence these buildings, I have
understood to be, (without having received, how*
ever, any particular information in relation to the
fact,) that the military stores at Philadelphia were
at that time stored iii private buildings without
the city, and exposed in those situations to fires
and accidents y that Philadelphia being one of the
finest mercantile towns in this country, rendered
it convenient to collect stores at that point, and
being at the same time sufficiently inland to be
secure from any foreign attack, and withal some-
1263
HISTORY OP CONGRESS.
1264
H. OP R.
Dieburgement oj Public Moneys,
Mat, 1802.
what, centrai. it was desirable to render the col-
lectioD of military stores extensive, and to estab-
lish what may be now called an arsenal at that
]^ace. To accompiish these objects, and for other
military purposes, the buildings were commenced
on the Schuylkill. And being disposed to place
more confidence in the Secretary ol War than in
the committee on this point, I can see nothing at
present which proves the building to have 'been
vnnecessary or too extensive, and I think it highly
probable that -the founder will hereafter derive
more honor fpom commencing them than the
eommittee will receive from censuring the mea-
sure.
What renders the report of the committee still
more extraordinary, both in resi)ect to erecting
the buildings, and also the purchase of navy yard.s,
is, that another subject, resembling these in prin-
ciple, was before the committee, and on which
they refused to report. This was the erecting of
the extensive navy stores in this place by the pres-
ent Administration.
The present Secretary of the Navy was request-
ed to inform the committee when those stores
were erected, and from what fund the money had
been taken. His answer satisfied the committee
that the stores had been erected by the present
Administration, and that the money, if I recollect
correctly, had been taken from an appropriation
for the 74's, navy yards, and docks. The minor-
ity of the committee believed, what I trust will
be generally believed by those who examine the
question, that this was (to say no more of it) at
least as doubtful an expenditure as that for the
purchase of navy yards, or for erecting the build-
ings op the Schuylkill. If an authority to build
74'8, to complete navy yards and docks, gave an
authority to erect stores for the accommodation of
the navy, it was thought that an authority to
build ships, necessarily included a power to pro-
care the land to place them upon ; and that an
authority to purchase military stores and to man-
ftfc the affairs of the army necessarily included a
power to furnish, at the public expense, buildings
to cover'the stores, and for other necessary mili-
tary purposes, at the discretion of the officers en-
tnuited with those concerns. The minority of
the committee, therefore, urged to include this
transaction in the report, together with the letter
ei the Secretary of the Navy, but the request was
rejected by the majority. We believed that the
cases were precisely similar in principle, and that
it was not conducting with impartiality to in-
dnde the one without the other; and we have
thought that when it was discovered that the
present Administration was conducting on prin-
ciples precisely similar to those of their predeces-
sors, it would greatlv tend to satisfy all parties
that the conduct of the Government bad been cor-
rect. I feel no hesitation in declaring that, in my
jud|rment, the present Administration were au-
thorized to erect the navy stores, although I be-
lieve that the power may be bettef questioned
than it could be in the other cases. These navy
stores, I presume, are useful both for receiving
the necessary materials for ship building, and se-
curing the stores of the public ships laid up ta
ordinary; and although not expressly aothorized
by the words of the law, may very well be con-
sidered as a proper appendage to a navy yard, or
as buildings rendered necessary in the fioishiDgof
the 74's ; and as to the extent of the buildings. I
am content to leave that point to the Departmoit
to which it has been confided. The propriety,
however, of including this statement in cbe report
(I trust) will be apparent to the House, and it will
not in this place be thought correct to confine oor
criticisms exclusively to the past Administratioo.
I therefore urge this as a further reason for recom*
mitting the report.
The committee have likewise mentioned the
payment of about two hundred dollars to some
persons at Georgetown, on account of a hoose
which had been hired in that place by Mr. Mc-
Henry, the former Secretary of War. if ii«
committee believed it proper to trouble the House
with this trifling transaction, they ought to hare
stated every circumstance which attended it, and
the House could then decide (If. indeed, it was
proper to decide at all) whether the payment was
rightly made or not. Since the committee, how-
ever, have not done this, I beg leave to state what
I have understood to be the circumstances under
which this payment was made.
In the Spring of 1800, whilst the Grovernment
remained at Philadelphia,Mr.McHenTy was Sec-
retary at War, and being obliged to prepare for
removing his office, agreeably to law, to the per-
manent seat of Government, he found it necessary
to engage a house in Georgetown, in tbe vieioity
of the public buildings, for himself and family.
After tnis was done, and without any prerioos
notice, he was compelled to resign his office, hj a
request from the President, which in such case
may be considered as a command. Tbe house, d
course, became useless to him, and the person of
whom he hired it claimed either rent or damages,
and. upon a reference, the sum of about two hon-
dred dollars was awarded. It is obvious, from
this statement, that the expense was incurred by
Mr. McHenry in consequence of being Secretary
of War; that it was an extra expense, arising en-
tirely from the order to remove from Philadel-
phia to Washington, and that it was a deadlos.
produced by these causes, and for which Mr. M^
Henry did not receive the benefit of a cent Un-
der these circumstances, it was decided that Got-
ernment ought to pay tne loss; and if the com-
mittee had given us the facts, it is highly prohable
that the House would be of opinion that the d^
cision was right.
Much has been said by the committee respect-
ing a payment to Mr. Tracy for his services and
expense in visiting the Western posts in the Sam-
mer of 1800. And here the committee bare
again, in the usual manner, excluded from their
report the cases which have arisen under tbe pres-
ent Administration, and which compare in prin-
ciple with the case of Mr. Tracy.
It is objected to the employment of Mr. Tracy
and the payment to him, because he was at that
time a Senator of the United States, and by the
1265
HISTORY OF CONGRESS.
1266
May. 1802.
Disbursement of Public Moneys.
H. OP R.
Constitution no member of the Lej^islature can
hold at the same time an Executive office. But
the case of Mr. Dawson, who was sent to France
with the convention, compares essentially with
the case of Mr. Tracy. Mr. Dawson continued
in the employment of Goyernment under that
aifeoey, and received his pay. after he was elected
a member of this House. His account was before
the committee, and it appeared that he was paid
Qp to the month of October. And surely the
Constitution has made no distinction between the
members of the House and of the Senate. If it
was right and Constitutional to employ Mr. Daw-
son on one agency, it was equally so to employ
Mr. Tracy on another.
It is likewise objected to the account of Mr.
Tracy, that his agency continued up to the com-
mencement of the last session of Congress, and he
was paid accordingly, and that in his account, as
a Senator, he has lilcewise been allowed what is
usually called travel from Litchfield to Washing-
ton, by which means he received (it is said) wages
as an agent and travel as a Senator at the same
time. But the committee forgot to include the
cases of the new Senators who went from this
House into the Senate last Spring. Mr. Stone of
North Carolina, Mr. Sheafe of New Hampshire,
and, I presume, Mr. Mnhlenburg, also retained
their seats in this House until the 3d of March,
and they received their pay up to that time, and
their travel at the commencement and at the close
of the session ; they went the next day into the
Senate, and the two former, and probably the
latter, received during that short Senatorial ses-
sion their travel to and from the seat of Govern-
ment. If it was right to allow those gentlemen
what the committee would, I presume, call double
pay, it cannot be objected to in the case of Mr.
Tracy, who was employed as an agent up to the
commencement of the session, entitled to receive
his pay as such, and likewise entitled to his mile-
age as a Senator upon the settlement of that
iccount.
I have not, however, been able to discover that
either of these cases are repugnant to law. The
Constitution declares *< that no person holding any
office under the United States shall be a member
of either House during his continuance in office."
An offiee can only be created by the Constitution
or by law, and there is neither a law or a provis-
ion in the Constitution creating an office in which
either Mr. Tracy or Mr. Dawson was employed.
The employment in which they were engaged
was a mere agency, and could not with more
propriety be called an office than the employment
of purchasing bills for Gtovernment, upon com«
missions, or the building of a light-house upon
contract. I cannot, then, see any Constitutional
difficulty in either of these cases. If, however,
any sucn objection did exist, I should rather sup-
pose that the right of a Senator had become va-
cated, belonged exclusively to the Senate, and that
the business of investigating the right of the mem-
bers of this House to their seats belonged to the
Committee of Elections.
The objection to what is called double pay, ap<-
pears to arise from an inattention to the lan^uase
of the law on this subject. The law fixing the
compensation of members of the Legislature does
not say a word about travel; the words are:
**Each Senator shall be entitled to receive six
' dollars for every day he shall attend the Senate,
^ and shall also be allowed, at the commencement
^ and end of every such session or meeting, six doU
^ lars for every twenty miles of the estimated dis-
' tance, by the most usual road, from his pla%B of
^ residence to the seat of Congress." The same ex-
pressions are used with respect to the members of
the House, changing only the names. When a
member, then, takes his seat in the Senate, he is
entitled to his six dollars for every twenty miles
of the Estimated distance from his place of resi-
dence, let him come from what employment he
may. It would, therefore, have been a mere af-
fectation in either of the Senators to have refused
this allowance, because in one case they had been
engaged in the House of Representatives, and in
the other, the ^ntleman had been employed in
transacting busmess for the War Department. I
am, therefore, inclined to believe thslt the decision
in the Senate, which settled this allowance, was
correct I hare not mentioned either of these
cases with the remotest view of censuring the
gentlemen who have been named, but findmg a
strong similarity existing between them and that
of Mr. Tracy, I was compelled to refer to them
to show a correspondioff practice under the pre»-
ent Administration with that which has been so
severely censufed by the committee.
I have already mentioned that the case of Mr.
Dawson was betore the committee, and I will now
state that the minority, seeing the strong similar-
ity of his case with that of Nir. Tracy in one im-
portant feature, urged to include it in the report,
but the majority, by the usual decision, rejected
the proposition.
I might go into an examination of every part
of the report, but at this late hour, and at the
close of the session, I shall scarcely be excused
for saying more than is absolutely necessary to
explain my motion, and this I trust has already
been done.
I have said that the report is erroneous both in
fiicts and in inferences. By the erroneous state-
ment of facts, I principally mean that the facts
are not fully stated ; that those facts are generally
omitted which would most strongly repel the cen-
sures which the committee have bestowed upon
the former Administration and upon individuals;
and I have been always taught that partial state-
ments are misstatements, and that the suppression
of truths necessary to be known is as erroneous
as the uttering of falsehood. I repeat again, that
I have not the smallest intention of charging the
committee with drawing up intentionally a par-
tial or erroneous report, but such I think, and
trust I have proved it to be, and I must expect
from the candor of the committee, when they re-
view their own work, they will unite with me, in
the motion for recommitment.
There is one consideration, attending this trans-
action, which has been already alluded to, and
1267
HISTORY OF CONGRESS.
1268
H. OP R.
Disbursement of Public Moneys,
May, 1802.
which ou^ht to impress 'itself strongly on the
House; it IS the division under which this report
was made. Is it possible, that gentlemen can be-
lieve, that a report attended with such circum-
stances, and so many objections, can be respected?
Will it not be considered as the result of party vi-
olence, and calculated to agitate the public mind,
rather than to elucidate any salutary truths? But
I will not enlarge upon these topics; I have in
sotDtf measure explained my motion, and submit
it to the House.
Mr. NiOHOLSON had very little inclination, at
this time, to enter into an explanation of this sub-
ject, which bad been so misunderstood bjr the gen-
tleman just up, on account of indisposition, nor
was he very anxiously opposed to the recommit-
ment, but he could perceive not a shadow of rea-
son why the report should he recommitted.
The gentleman had grounded his motion upon
the opinion, that all the necess.try facts had not
been stated. It was, to be sure, a very late period
of the session, and the discussion would there-
fore consume much precious time; but notwith-
standing that, if it should appear that any ma-
terial facts had been suppressed, there would be
good ground fur recommitting the report. He
should therefore think it necessary to test the
grounds advanced, to prove the necessity of the
recommitment.
1. It was first stated in favor of the motion,
that the expense attending the removal of the
Gbveroment was a duly authorized expense, be-
cause it had been passed by the accounting officers
of the Treasury. But the real question is, were
those accounting officers authorized to pass this
account? In the examination of this question,
the committee referred to the act of 1790, section
six, in which are these words: "And all offices at-
tached to the said seat of Government, shall ac-
cordingly be removed thereunto (Washington)
by their respective holders." The question which
occupied the committee was, what expense this
act was intended to cover. In recurring to the
documents, the committee found that $15,000 and
odd was paid for removing the furniture of the
offices. &c. This the committee did not think
an unauthorized expense, because the law em-
powered it. The books, furniture, records, papers,
dbc., of the officers, and of the President, they
thought the law authorized the removal of; but
the committee could see no authority for paying
$32,000 for the removal of the heads of depart-
ments, their furniture, their clerks and their fam-
ilies and furniture; they could see no reason, for
paying to the clerks, dbc. for their broken glass,
and cnina, their tayern expenses, and what is
called their dead house-rent in Philadelphia. The
committee saw no reason, for saying these accounts
were passed at the offices of the accounting officers,
because it must be well known, that no account
could be paid until it had been so passed. The
only question which occupied the committee, was,
to inquire whether the money so paid was duly
authorized. Whether, for instance, one officer for
breaking a looking-glass — another a piece of china,
dbc. — another to receive his house rent — another
get his expenses paid, to come here to look after
a house, and his tavern expenses while here, were
the expenses within the meaning of the iawabore
quoted ? Facts of these kinds appearing to the
view of the committee, they were bound to ex-
press an opinion upon them, for they did not think
the accounts were legally passed. The law merelj
authorized the necessary expense for remoTiog
the public offices; it did not authorize the Seeie*
tary of the Treasury to be paid five hundred dol-
lars for the removal of his family and farnitare,
nor the Secretary at War seven hundred dollars.
Several others also received as much as fire boo-
dred dollars, and thence, from the heads of the
departments, down to the clerks, to fifty dollars.
The committee did not mean to implicate the
characters of these gentlemen for receiving (be
public money, but they considered it their doty to
disclose facts, and to declare that they did not
believe the expenditure legally authorized.
The secona observation the gentleman made
was, from that part of the report which states
that an unsettled balance of four millions in tbe
War Department, and of three millions in tbe
Navy Department, remains. He says it was tbe
duty of the committee to have stated, that almost
the whole of those sums had been received, al-
though unsettled. If the House will examine tbe
documents accompanying this report, they wiU
find that the sums paid into the Treasury from
this large sum, have actually been passed to ibe
credit of the departments. This the committee
thought sufficient, because any m^n who would
give tiimself the trouble to examine, would find
that much has been settled. But the committee
could not say with precision how much, because
the period of the session was such as to prevent
them from passing through such yolumiDOos ac-
counts. It would have been an extremely labo-
rious and tedious undertaking, and therefore tbe
committee were obliged to report briefly. Tbe
committee could not examine particularly into
the items, nor form any comparison whereby to
prove their accuracy or inaccuracy ; they were
obliged to take it for granted that those things
were all ri^ht. They reported agreeably to tbe
mode of doing business in the Treasury Depart-
ment. Until the account of any individual is
finally closed, let him be indebted ever so little, he
is considered, in the Treasury books, a debtor for
the whole of the account. In this way the com-
mittee reported, and accompanied the document
with marginal notes, exhibiting where the accounts
have been rendered and partially settled.
As to the navy yards, the committee baring
been appointed '^ to report whether moneys drawn
from the Treasury, have been faithfully applied to
the objects for which they were appropriated, and
whether the same have been regularly accouoted
for ;" and knowing that six navy yards had been
purchased, very naturally inquired under what au-
thority these purchases nad been made, and how
they were paid for. They referred to the law
authorizing the building of'^six seventy-fours and
six sloops of war. The committee submitted an
inquiry to the former Secretary of the Navy, (Mr.
1269
HISTORY OF CONGRESS.
1270
Mat, 1802.
Disbursement of Public Moneys.
H. opR.
Stoddert,) directiog him to inform the commit-
tee as to ihe purchase. Mr. Scoddert answered,
that a law had passed, appropriating one million
of dollars for building the seventy-fours and sloops
of war, and that fifty thousand dollars were also
appropriated for two dock yards; and also that
two hundred thousand dollars were appropriated
for the purchase of timber, or land clothed there-
with ; and that he thought himself authorized to
purchase six nary yards, wherein to build the
seven ty-fours. To these several laws the com-
mittee referred for the authority under which the
Secretary acted, but they could find no such au-
thority ; they could find no other, than authority
to purchase two dock yards, wherein to repair
the ships. Now, although not stated in the re-
port, there is very ^ood reason to believe that
the fifty thousand dollars never was laid out upon
the two dock yards, but that this sum was cast
into the surplus fund. Whether Mr. Stoddert's
opinion was correct or not, that it would be more
economical to build the seventy-fours in public
yards, than in private yards at rent, the committee
were not appointed to inquire; it was their busi-
ness to say whether he was authorized to act so,
let his private opinion be what it might. The
committed were clearly of opinion, that he was
not authorized to take money appropriated for one
purpose and make use of it ior another.
As to the reason, why the gentleman wishes the
report recommitted ; to wit, to insert Mr. Stod-
dert's answer with the report; it is true a motion
for the insertion was made. But the committee
thought that letter was addressed to them, and
not to the House ; that it was to inform their minds,
so as to enable them to make the report. They
paid due attention to the reasoning of the letter,
but it did not convince them that Mr. S. actea
authoritatively. Mr. Stoddert's reasoning upon
the subject could not form a part of the report ;
the committee were called upon to form an opin-
ion, and not to substitute that of any individual
They were to inquire whether moneys appropria-
ted were used to the purposes for which they were
appropriated. They thought it was not, because
it was appropriated to build ships, and to purchase
land with timber on it, or limber alone. The
question then is, whether six navy yards are six
seventy-four gun ships, and whether six sloops-of-
war are lands with timber growing on it or not?
If Mr. Stoddert's reasoning nad been adopted by
the committee, it would have become their rea-
soning, and except it should be theirs, it would
have had no business in the report. If a disposi-
tion of vindication could have been admitted, Mr.
Stoddert might have been permitted to have ap-
peared with counsel before the committee, but
facts alone were required, and facts the committee
state. Ships had been built for the public before,
but the idea never was entertained to build docks
for them. No measure difie^ent from those taken
in the building of the frigates, except by legal au-
thority, ought to have been taken with the seventy-
fours.
The military arsenal at Philadelphia, the gen-
tleman said, was built to keep the stores in with
more safety, than they could be kept in private
stores, in the neighborhood of which frequently
fires occurred. All this might be truth, but if
these were facts, Mr. Nicholson would ask, why
were not Congress applied to, to say whether they
would take tlie risk^ or whether build stores, for-
the more safe deposit of the public stores ? But
the money which built this military arsenal or
laboratory, (more properly,) he believed it would
be found was taken from the Quartermaster's de-
partment. Now, was it ever thought, that this
fund should supply resources to build a laboratory?
Was the duarter master's department ever appro-
priated to, for other than the purposes expressed
or intended ? No laboratory can be built, but by
the authority of the State where erected; but
where is the State authority, or where the appropri-
ated fund for this purpose? Upon examination, the
committee could see no authority to appropriate or
apply public money for this purpose, and yet they
found that one hundred and thirty-five thousand
dollars were taken from the Gluartermaster's de-
partment for this military arsenal ! The commit-
tee could see no authority for the expense, and
that fact they have stated.
As to the resignation of Mr. McHenry, whether
voluntary or at the request of the President, the
committee saw no reason why the Grovernment
should provide the house for Mr. McHenry at
Georgetown. It might be supposed that neither
that officer, nor his friends, would have thanked
the committee for reporting any reasons, which
might have caused his removal from office:-—
they had nothing to do with it, having no docu-
ment upon the subject.
The account of Mr Tracy is next vindicated,
and ail the gentleman appears to regret' here is,
that Mr. Dawson's account is not inserted in the
report. One general answer mi^ht be given to
this. It was believed by a majority of the com-
mittee that Mr. Tracy did receive money from the
Treasury improperly, but it never has been sug-
gested that Mr. Dawson did so, and therefore there
IS no comparison of the cases. Nay, it was said
by the gentleman himself, (Mr. Griswold,) that
he did not blame Mr. Dawson. The committee
saw a most material distinction in the cases. At
the time of Mr. Tracy's appointment, he was a
member of the Senate of the United States At
the time of Mr. Dawson's appointment, he was a
member of neither branch. Mr. Dawson received
his warrant of appointment some time in March,
but he was not elected to fill a seat in this House
till the end of April, and then he was on his mis-
sion. His functions of member of Congress had
ceased before his appointment, and his appoint-
ment took place before his re-election. Again,
Mr. Dawson received no pay after some time in
October last, which was some months before the
sitting of the House. On the contrary, Mr. Tracy-
received his pay of officer, or agent, or whatever
he was, for seventeen days after the sitting of the
Senate ; so that he was paid as a member of the
Senate, and as an officer at the same time. The
committee could not discover the cases as parallel
to each other, and therefore did not insert the
1271
HISTORY OF CONGRESS.
1272
H. OP R.
Disbursement of Pvtblic Moneys
MiT, 1802.
case of Mr. Dawsoa, which was moved by the
minority.
Several other cases were also mentioned — those
of Mr. Sheafe, Mr. Muhlenberg, and Mr. Stone;
but whether they were as represented or not, they
were not brought into the view of the committee;
otherwise there would have been an inquiry.
Mr. Griswold. — I did not mention the case of
General Muhlenberg, nor did I charge the othfer
gentlemen with improper conduct : I believe they
were strictly warranted to act as they did. I
merely stated the reference for th« purpose of show-
ing that Mr. Tracv was entitled to the compensa-
tion he received for travel, as well as the others,
because it has been a long-standing rule of the
Senate to allow the travel in such cases. It is not
our province, therefore, to object to it. Respect-
ing the decision of the Senate, I wish not to op-
pose it. And being no uncommon case, there is
no necessity to bring up that of Mr. Tracy, whom
I consider entitled to his travel, both as an agent
and as a Senator.
Mr. Nicholson observed, that not being brought
before the committee, and he not having heard of
the case till this day, it could not be a reason why
the report should be recommitted.
The case of the navy yard at this place was
brought before the committee. It was the request
of the minority that the case should be inquired
into. The committee sent to request the Secre-
tary of the Navy to say by what authority the
storehouse had been erected here, or from what
fund it was paid. The answer was, that the store-
house had been erected out of a fund granted in
February, eighteen hundred and one^for complet-
ing the seventy-fours, the navy yards, and the
docks. The ships had beea ordered to be laid up
in ordinary at this place, and the navy yard pur-
chased. When the present Secretary of the Navy
came into oflSce, he lound, that as a navy yard was
to be completed here, and as sails, rigging, and
other naval stores, must be kept here ; and finding
that one storehouse was already boiit, and another
begun, here, it would be most prudent to complete
that storehouse^ as a necessary appendage to a navy
yard where shipping would be sent for repairs.
To this none of the gentlemen objected, but rather
approved ; and this is surely a purpose to which
the money was appropriated. Whether the other
applications are or not, is for the House to decide.
Tiie committee have stated the facts.
Mr. Dawson said, he did not rise to answer the
ffentleman from Connecticut, (Mr. Griswold,)
because he thought that had been ably done by the
gentleman last up, and because his observations
did not command that respect; but he rose to pre-
vent any improper impression, which the misre)>-
resentations of that gentleman might possibly
make respecting himself. The gentleman stated
that a member of this House was appointed to an
official station on a foreign mission. As stated by
the gentleman from Maryland, I did receive the
appointment some time last March, said Mr. D.
During my absence, the people of my district
eUcted me a member of this House. Some time
in October my business was closed. I arrived here
some time in January, but did not receive salary
as a member till some days after my arrival aad
till I had taken my seat. This is well known to
that and every other gentleman. Every geod^
man must also know, that I could not be a mem-
ber of this House until I took my seat, and there-
fore I could not have been appointed to, or held
my seat, while exercising the ousiness of the na-
tion abroad. I must therefore say, that unless tbe
other observations of the gentleman (Mr. Gais-
woLD)are better founded than his relation of fads,
they deserve very little credit indeed.
Mr. R. Williams always thought that a mo-
tion to recommit a report was grounded upon
the insufficiency of that report as to facts, fioc
he had hearkened with much attention, and had
not discovered anyarfuments built on a misstate-
ment of facts. If no facts are misstated, then the
motion must necessarily £all. That the commit-
tee have not ^iven a full and ample report apoa
the account, is admitted in the report; they say
that the business was of such a nature, that it was
not in their power, during their limited period, to
do it. It was not uncommon, or contrary^ to role,
for committees to report in part, and this might
be takea as a report in part. Did the gentleman
mean to say, that no report ought to have been
made, till all the subjects upon whicb the com-
mittee might have turned their attention had been
fully examined ? The committee have said, that
there are many things which they should have
in vestigated if t ke y had had lim e. It is not certaia.
for instance, to what length the construction d
the laws have been carried. The gentleman has
said, that a certain construction has been pat apon
laws making certain appropriations, and this House
has nothing to do with it. With this we cannot
agree as a Legislative body, because if this length
can be admitted, anything can. However men
might differ in committees, it is for the Hoase to
determine on the facts stated in their report. Here
the committee have reported certain facts: they
have brought into view the uses to which certain
appropriations were applied, to support which they
have produced documents, so far as they were
able. It i& for the House, upon a view of these
facts, to say whether or not the moneys have been
applied to their proper uses, as dir^ted bylaw.
Upon this single point, he thought the questiop
turned, whether or not these facts were misstated;if
not, there could be no ground for a recommitmeou
Mr. Bayard. — I Hatter myself, though perhaps
vainly, if this report be recommitted, it will assume
a very different shape, both in form and substance
upon its appearance at a subsequent session. The
report, though the long work of near half a year,
is extremely immature and incomplete. Having
been a member of the committee, although of tiie
minority, I have a right to suppose myself ac-
quainted with its proceedings. It was impossi-
ble, from the course pursued, for the committee to
have any correct knowle^ige, or certain opinion, as
to the results which compose their report. We
iiad no time to compare them with the details
contained in the documents transmitted to ns from
the offices, and frosti which they were derived.
1273
HISTORY OF CONGRESS.
1274
May, 1802.
Disbursement of Public Moneys.
H. ofR.
Gentlemen may consider me, if they please, asspeak-
iog only of the minority of the committee, for I
can speak with certainty only in relation to them.
Though the committee existed for more than four
montlis, the report which has been made was not
the subject of consideration half the number of
days. We had notice one evening to meet the
next morning at ten o'clock to receive the report
of the committee. I was astonished. The com-
mittee had directed no report to be drawn up, they
had agreed to no fact, nor resolved upon any prin-
ciple. We were summoned to meet at the hour
to which the House was adjourned, and of conse-
quence had no more time for our deliberation,
than the period of grace, between the nominal
hour of adjournment and the actual time of the
House being called to order. The report was pro-
duced and once read. There was not time to com-
pare the statements made with the documents re-
ferred to. Our opinions were immediately called
for upon the report, as the intention was to present
it that morning to the House. Upon a great part
of the report, it was impossible for some of us to
form so hasty an opinion ; but there were some
things obviously exceptionable. I shall not be
considered as finding fault with the chairman of
the committee — I presume he considered him-
self as conforming to the ordinary course of pro-
ceeding. Some of the exceptions which occur-
red to us, upon the cursory reading of the report,
were stated. I will not say that a word was not
corrected, but no material change was suffered.
Observinfi^ that the official conduct of Mr% Stoddert
was deeply implicated in the report, we urged that
common justice required, that as Mr. S. was on
the spot, that we should hear his defence, before
we passed our judgments upon his acts. Upon
this point the minority was joined by the chair-
man, and a letter was in consequence addressed
to the late Secretaryr, requesting him to explain
the grounds from which the authority was derived
to make several disbursements. He was allowed
till next morning to furnish an answer to the
committee. At our meeting the ensuing day, Mr.
Stoddert's answer was received. He liad been
manifestly hurried, but to the minority of the com-
mittee the answer was entirely satisfactory. We
endeavored to vary the report accordingly, or at
least to have the Secretary's letter annexed, and
referred to among the documents. The attempts
however were overruled. It occurred to us at this
time, that we were bound to observe at least the
same appearance of justice in relation to Mr.
Tracy, whose conduct was the subject of our an*
i mad version, which had been shown in respect to
Mr. Stoddert.
It was therefore insisted, before the report was
made, that Mr. Tracy should be allowed an op-
portunity of explanation. The chairman so far
complied with the wish of the minority, as to agree
that the report should be shown by a member of
the committee to Mr. Tracy, and his answer wait-
ed for till the next morning. Upon the third day
we made an effort to introduce into the report
several cases^ which had occurred under the present
A-dmiaistration, which the minority coasidered as
standing upon the same ground with acts of the
former Administration, which were condemned in
the report. The effort was vain. The cases we
referred to were distinguished by the vote of the
majority from those which were stated. After
one or two small amendments, the report was of-
fered for our agreement, an^ adopted by -four
against three. The same morning the chairman
presented it to the House.
I have made this statement in order that the
House may be acquainted with the ground upon
which I undertook to assert that the report was
immature.
It was impossible, in the time allowed us, to
weigh the evidence of facts, to consider the sound-
ness of principles, or to examine the correctness
of statements contained in the report. It will be
perceived by those who are accustomed to the
forms of proceeding upon committees, that our
course has been entirely novel. It was usual
heretofore for a committee to agree upon the sub-
stance of their report, and then to instruct their
chairman to draw up a report in conformity to
their opinion. In the present instance our opin-
ions had not been asked, upon any point embraced
by the report, before it was offered to us in its
complete form.
If the points and cases which the report contains
had been separately brought under discussion,
they would have been more fully investigated and
considered, and the result might, in consequence^
possibly have been varied. As it regarded myself,
this new mode of proceeding was a complete sur-
prise. I had concluded, from everything which
fell under my observation, that the intention of
making a report was entirely abandoned. This
inference was drawn from the small impression
which had ever been observable from any discov-
ery which the committee had made, as well as
from the omission of any consultation which usu-
ally had been preparatory to a report. It would
have been difficult for any of those to have con-
ceived that such a report would have been made,
who had never previously, from any one member
of the committee, heard that any act of the Ad-
ministration had been discovered worthy of being
made the subject of our censorial power.
I see it stated in the report, that from the year
seventeen hundred and ninety-seven to the year
eighteen hundred and one, inclusive, a sum was
advanced by the Treasury, chargeable to the War
Department, exceeding ten milhons of dollars, of
which upwards of three millions remains unset-
tled or unaccounted for. And that from the year
seventeen hundred and ninety-eight to eighteen
hundred And one, a sum exceeding nine millions
has been advanced on account of the Navy De-
partment, and a balance unaccounted for. or un-
settled, of more than four millions now remains,
Thisstatement may be warranted by the mere form
in which the balances were transmitted to us, but
is calculated to make the most erroneous impres-
sion. When the document containing the bal-
ances was sent to us, no one supposed it to afford
any light, as to the objects of our investigation, or
to fufnish any complete infcHrmation, upon which
1275
HISTORY OF CONGRESS.
1276
H. OF R«
Disbursement of Public Moneys.
May, 1802.
an opinion could be formed as to the money doe
to the United States. The face of the documeot
itself, attests, that of the sums stated to be unsettled,
the greater part had in fact been accounted for,
and the formal closing of the accounts not haying
been considered very important either to the Gov-
ernment or to the individuals, they have remained
open from the most trivial impediments. It would
seem, from the mode in which these balances are
sustained, that if one hundred thousand dollars
have been advanced on a contract and ninety-nine
thousand nine hundred and ninety-nine have been
accounted for, yet the whole balance will appear
to be due, till a voucher is produced for the last
dollar. It appears also, in the face of the document,
that balances are in some instances stated due to
the United States, where it is manifest that the
sum stated as a balance was a payment of a debt
due from the (Government. Manv of the items,
aremoney paid to the officers of the Army and Navy
on their account of pay and subsistence, where the
money was due for services. Nay, there are cases
where money has been advanced on account, and
afterwards, upon the inspection of the vouchers,
the balance ascertained and paid, and yet, from the
account not being formally closed, the whole
sum appears and is reckoned among the balances
due to the United States.
More than four millions are stated as unsettled
balancesupon the transactions of the Navy Depart-
ment. I remember well, when we were in the of-
fice of the accountant of that department, the ac-
countant stated it as bis opinion, tnat the Treasury
was not in advance for the department more than
^ve hundred thousand ; and that from his knowledge
of those advances, he did not think the United
States would lose ten thousand dollars, upon all
the transactions of the department. I was struck
with the information, knowing that the contracts
of the Government are formed and executed by
advances, and considering that ten thousand could
be deemed but a very small loss upon an expendi-
ture often millions of dollars. I considered it as
an example of skill, vigilance, and success in the
manaffement of the public affairs, that is rarely af-
forded even in the conduct of private concerns.
What has been remarked with respect to the Navy,
equally applies to the War Department.
The aggregate balance of near four millions, sta-
ted as unsettled or unaccounted for, in the report,
is composed of items, which, explained by the notes
annexed to them, appear chiefly to be accounted
for, to the satisfaction of the War Department.
One item, which enters into the general balance,
is a sum exceeding eight hundred and eighty thou-
sand dollars. It appears that General Wilkins
has furnished voucners for the whole amount of
the advances made to him, but has not furnished
accounts for a small quantity of public property
sold on the Ohio, (I believe some boats,) and there-
fore the account is not closed, and the whole
amount ever advanced to him is computed among
the unsettled balances. I understood the account-
ant was satisfied with G(eneral Wilkins's accounts.
Mr. Nicholson — The gentleman says the ac-
countant of the War Department was satisfied
with the accounts of General Wilkins. I did not
understand the fact so— ^vouchers were sent on, but
they were not satisfactory.
Mr. BxYARn. — I know not that there was com-
plete satisfaction, as to the manner of each dis-
bursement, but I mean, that it sufficiently appeared
that the money had been expended on the public
account. Thus an unsettled account, probably less
in amount than two thousand dollars, gives the ap-
pearance of a balance unaccounted for, exceeding
eight hundred and eighty thousand dollars. There
are numerous instances of the same kind. In the
list of balances, is the sum of one hundred and
twenty-two thousand dollars, charged against Cap-
tain Vance; and it is stated, in the annexed note,
that it appears that the whole sum has been duly
applied. So against B. Williamson is charged a
sum exceeding two hundred and thirty-five thou-
sand dollars, though it is stated that he has furnished
accounts of the application of the whole sum. It
is needless to cite other instances of a similar kind ;
those which have been shown must convince the
whole House that the report is not explicit, and
is extremely exposed to a fabe interpretation.
The objection to this part of the report furnishes
the strongest ground for a recommitment. It cer-
tainly cannot be the design to raise a belief, that
millions of the public money remain unaccounted
for, when the documents from which all our know-
ledge is derived show that a very small sum re-
mains unaccounted for; and when I undertake to
say, that the evidence before us is not sufficient
to prove that there is a dollar due to the United
States. Can it be the interest of any party in the
nation, or of any member upon this floor, to destroy
the public confidence in tne general administra-
tion of the Government? Let the peculiar hon-
esty of one Administration be suspected, and their
successors will soon sink under the same odious
suspicion. On such a subject, we should banish
our partialities and antipathies, not merely as a sac-
rifice which' belongs to justice, but as an act re-
quired by a great national and common interest
I acknowledge that this part of the report will be
harmless in the hands of those who will read, and
are able to understand the documents on which it
is founded. But the bulk of the document will
probably exclude it from the public paper5, and
the great number of persons who read the report
will read it without explanation. The probability,
therefore, of the report creating false impressions,
of a nature extremely derogatory from the honor
of the Government, would alone be a sufficient
motive with me to vote in favor of the motion to
recommit.
There are many other grounds upon which I
consider the report exceptionable. It is not how-
ever my intention at this late hour (six o'clock) to
enter into all the details of the report. My obser-
vations will be confined to a few prominent and
important points, upon which the different mem-
bers of the committee held very opposite opinions.
I had no knowledge of the resolution of my friend
from Connecticut ^Mr. Griswolo) to submit the
motion on the table, before the meeting of the
House this morning, and am therefore the more
1277
HISTORY OF CONGRESS.
1278
May. 1802.
Disbtiraement of Public Moneys,
H. OP R.
gratified that the honorable mover has taken so
comprehensive a view of the subject, as to render
it totally unnecessary for me to go over the whole
ground.
1 shall beg the indulgence only of a few words,
upon one or two heads^ respecting which the opin-
ion I entertain is decidedly opposed to that ex-
pressed by a majority of the committee. I cannot
well conceive of a plainer mistake, than what ap-
pears in the opinion, pronounced on the purchase
of six navy yards, made by the late Secretary of
the Navy. The committee, I think, ought to be
allowed an opportunity of reviewing that opinion.
Four of those six yards are considered as pur-
chased without authority, and the money paid for
them misapplied.
By the act of the Lecfislature, of February 1799,
the Secretary of the Navy was directed to cause
to be built six ships, each to carry not less than
seven ty-fou r ffuns ; an d six sloops-of- war of eighteen
guns. For this purpose, a million of dollars was
appropriated; two hundred thousand were appro-
priated to the purchase of land, bearing timber
suitable for the Navy, and fifty thousand dollars for
the making of two docks. These laws, passed on
success! vedays, indicated thedesign of a permanent
Navy Establishment. It was perfectly understood
that the ships of the line were not directed to be
built for the occasional defence of th^ country at
that period, but were intended as the commence-
ment of a lasting system of defence, which was ex-
pected to in crease with thegrowth of the commerce
and resources of the country. It was far from our
expectation that the Navy of the United Slates
was to be limited to six ships of the line, or to any
number within the convenient means of the coun-
try, short of a force adequate to render our flag
respectable and our navigation secure. It was not
supposed that the seventy-fours would be launched
for several years, but we had hopes when they left
the stocks, a flourishing commerce would enable
us to lay the keels of new ships in their places.
Under tnis view were the two hundred thousand
dollars appropriated, to the purchase of land pro-
ducing timber fit for a navy. With this knowledge,
so plainly derivable from the policy pursued by the
Legislature, what was the Secretary of the Navy to
do7 It was made hisduty to build six seventy-fours
and six sloops-of-war. It is surely not expected that
they we re to be bull ton the water or in the air, and of
consequence it will be allowed that he had author-
ity to provide yards, for the purpose of constructing
them. The public had no yards, and it was there-
fore necessary to obtain ground from individuals.
As there were no persons disposed to make chari-
table grants, it remained only for the United States
to purchase ground in fee simple, or for a term of
years, paying a gross sum or an annual rent. The
act of Congress, directing the ships to be built, ap-
propriated not a dollar either for the renting or for
the purchase of land. But a million of dollars
were appropriated to the building of the ships,
which was directed to be done, but which could
not be done without an expenditure for land. Can
there be a plainer proposition, than that an appro-
priation for a certain service embraces every article
withoutwhichtheservice cannot be performed? In
the present instance, the service imposed upon the
Secretary could not be performed without obtain-
ing navy yards at the public expense. It therefore
rested in liis discretion, for the faithful exercise of
which he was accountable to the Government,
either to purchase or rent the ground, necessary
for the yards. It was his duty to conform to the
views of the Legislature, and to make such an
arrangement as would be most advantageous to
the public. If it answered the object, and was
most for the interest of the Government to rent,
then surely he ought to have rented ; but if it com*
ported more with their views, or was more to
their benefit to purchase, it was then his duty to
purchase.
This inquiry, however, was never made by the
committee. They never asked the question whe*
ther it was cheaper to buy or to rent, and they
have condemned the Secretary for buying and not
renting, when he had no more authority to rent
than to buy, and when by buying he has proba-
bly saved to the United States several hundred
thousand dollars. The situation of this officer is
peculiarly hard. Having been directed to build a
number of ships for the public service, he has pur-
chased navy yards for the purpose, and in conse-
quence has subjected himself to the accusation of
expending public money without authority. If
he had rented land for the purpose, he would have
been equally liable to the same reproach ; and if
he had neglected to do either, he would have been
exposed to an impeachment. The Secretary has
it fully in his power to show, that his purchases
will save a large sum of money to the United
States. A navy yard, for a seventy-four, cannot
be prepared without great expense. Under this
head, I am informed by the Secretary, that one
hundred thousand dollars were expended on one
frigate, the Constellation. This was occasioned
in a great degree by leasing the yard. At the ex-
piration of the lease, the public lose the benefit of
all their expense in preparipg and improving the
ground.
In addition to the inference which the Secretary
might fairly make, of an authority to purchase
ground for the navy yards, if a purchase could be
made on cheaper terms than a contract of lease,
he had further to consider the intention, plainly
manifested by the Legislature, of establishing a
system which would require the use of these navy
yards at a future time, beyond the duration of any
common lease. Nay, he knew not what time was
to be consumed in'building the ships directed, and
of course could not know for what term a con-
tract could be made. At present, if the Govern-
ment should be disposed to sell the ships on the
stocks, they have the power to sell the navy yards,
and they will have the same power when the
ships are launched; and they may thus convert in
efi*ect the permanent purchase into a term for
years, and restore to the Treasury the money
which has been expended. But, sir, what I con-
sider as the hardest act on the part of the majority
of the committee, was' their refusal to sufier the
awwer of the Secretary to the letter we addressed
1279
HISTORY OF CONGRESS.
1280
H. OF R.
Disbursement of Public Moneys.
May. ISD2.
to him, explaining the grounds of his conduct, to
accompany the documents annexed to the report.
We have been told by the gentleman from Mary-
land (Mr. Nicholson) that it was not the busi-
ness of the committee to report the opinions of
the Secretary, or of any other individual. If this
be correct, I believe it was as little the business
of the committee to report their own opinions.
They should have confined themselves to the
statement of facts, and upon those facts have left
the House and the nation at large to form their own
opinions.
If this course had been pursued there would
have been little occasion to publish the reason-
ing of Mr. Stoddert ; but, as the opinion of the
committee is merely their inference from certain
premises, it was due to the public, as well as to
the Secretary, that the grounds should be explain-
ed which had Ipd him to a different conclusion
from that adopted by the committee. This re-
port seems, at present, intended only for public in-
formation ; certainly I must believe to give correct
information. The letter of Mr. Stoddert throws
{Treat light upon a part of it, and when our object
is only to inform the people on a subject, why
should we refuse any light which places it more
clearly before their eyes ?
I shall be allowed to say a few words in rela-
tion to the case of Mr. Tracy. I am not satisfied
with the opinion or the conduct of the committee
in relation to it. The service rendered by Mr. T.
was not incompatible with his appointment of
Senator. He was employed to visit the posts on the
frontiers, and to collect for the Government all
the material information respecting them. This
was a very delicate, confidential, and difficult ser-
vice; but the employment constituted no office.
It was a simple agency, confined to a single occa-
sion, performed under instructions, but no com-
mission. But, sir, if the case of Mr. Tracy pre-
sented anything irregular, some of us conceived
that the case of Mr. Dawson, standing on the
same ground, ought also to have been stated in
the report. The gentleman from Maryland has
contended, to-day, that there is a difference be-
tween the cases. I am sensible of the difference.
The one is the case of Mr. Tracy, the olher is the
case of Mr. Dawson. I see nothing in it to cen-
sure, but still considering it in every material re-
spect the same with that of Mr. Tracy, there was
equal reason for making it a part of the report.
The chief ground on which it has been attempted
to distinguish the cases is, that Mr. T. was a Sen-
ator, at the time when he was sent on his mission,
and that when Mr. D. was appointed to his, he
was not a member of this House. This distinc-
tion exists, but I trust I shall be able clearly to
show that It is not material. And give me leave
here to tell the gentleman from Virginia, (Mr.
Dawson,) that in attempting to impeach the credit
always due to the statements of my honorable
friend from Connecticut, the imputed misstatement
arose from his own misapprehension. The gen-
tleman from Connecticut did not mean to state
that he was a member of the House at the time
of appointmeiit, but that he was a member durj^g
a period that he was rendering service under Ex-
ecutive instructions.
I say, sir, that the cases are not materially dis-
tinguished by the circumstance that Mr. D. was
not a member at the time of his appointmeQt, be-
cause the holding a seat in either olthe branchesof
the Legislature, under no Administration, has been
considered as forming an incapacity to receireao
Executive appointment. Under the former Ad-
ministrations, several instances of such appoiat-
ments occur ; and under the present, I need ODly
refer to the case of Mr. Pinckney, who was a mem-
ber of the Senate at the time of his appointmeDi
as Minister to the Court of Madrid. The circam-
staoce, therefore, of being or not being a member
of the Legislature at the time of an appoioimeot,
is wholly immaterial. A member of the Legisla-
ture has an unexceptionable right to receire an
Executive appointment, but the question is, whe-
ther the acceptance or exercise of an office under
the Executive, does not vacate a seat in the
Legislature. On this subject, I have do doubt
that the acceptance of an office under the Ex-
ecutive, does vacate a seat in the Legislature.
But the question still remains, whether the em-
ployments of Messrs. Tracy and Dawson are to
be considered; under the Constitution, as offices.
Upon this point, there cannot be a doubt but that
the appointment of Mr. Dawson was as muchio
the nature of an office as that of Mr. Tracy. It
will be remembered, that Mr. Dawson invited bi^
constituents to elect him, proffered his services.
and engaged to be at his post, when bis duty
should require his attendance. He was elected in
April, and virtually accepted his place from the
time of his election, and yet con tinned to serve
under the Executive, and to receive pay for his
services till October following. But, sir, I do not
conceive that it belonged to the committee, or
that it belongs to this House, to interfere in any
degree in the case of Mr. Tracy. The employ-
ment of Mr. T. was unquestionably unexception-
able. The only question is. whether the empior*
ment did not vacate his seat in the Senate? This
question, the Constitutional privilege of the Sen-
ate connoes to that body, and for us to decide
upon it, is an invasion of* those privileges. If
any thing wrong has been done, which attaches
blame, it is by the Senate. With a kaowled^
of the employment in which Mr. T. had been en-
gaged, they allowed him to retain his seat as a
member of their body.
It is stated, that Mr. Tracy received pay for
mileage as Senator, while the pay of his agency
continued. The compensation for travelling is
governed by the law of its own nature. Mileage
IS due where there is no travelling. Ad allov-
ance is made to members, which is regulated by
the distance of the place of their usual residence
from the seat of Government. This they are en-
titled to, independent on their coming from or re
turning home. When Congress adjourns, a mem-
ber from Georgia is entitled to his mileage, wheth-
er he returns to his State, travels to the North; ^
remains at the Seat of Grovernment.
It has been the practice in the Senate, when a
1281
HISTORY OF CONGRESS.
1282
May, 1802.
DMursement of PiMic Moneys.
H. ofR.
member of this House, is appoiated to that body,
to allow htm full mileage, tiotwithstandiog his
receiving mileage, for the same travelliDg, from
this House. This happened in the case of Mr.
Scone of North Carolina, and Mr. Sheafe of New
Hampshire. They were both members of this
House, during the last session, and held their seats
till the third of March. On the fourth of March,
they took their seats in the Senate, which had
been called to meet on that day. They received
full mileage as members of the respective Houses.
Mileage is not a compensation for service, but an
indemnification for a supposed expense. A per-
son cannot be a member of the two Houses at the
same time, but for the same time he is allowed
mileage by each House. If, therefore, the employ-
ment of Mr. Tracy were a mere agency, there
could be no objection to his receiving his milea^
during the continuance of the agency. The dis-
cussion of this subject has been extremely unplea-
sai^t to me. It is always unpleasant to have oc-
casion to introduce into debate the names of gen-
tlemeUf whose feelings are unavoidably excited
and often injured. But consideriDg as a defect
in the report, and a reason for recommitment, the
statement of a case under the former Administra*
tion, and the omission of one precisely similar
under the present, I have felt myself justified, as
the case of Mr. T. was stated in the report, to state
the case of Mr. Dawson in the debate.
I need, sir, say very little relative to the expense
attending the erection of the laboratory in the vi-
cinity of Philadelphia. The subject has been
well explained by py friend from Connecticut ;
the building was necessary for the preservation
of the arms and stores of the United States, and
the expense was therefore properly defrayed out
oi the appropriations for the Ctnartermaster's
department
The gentleman from Maryland, in justifying the
erection of stores at Washington, has furnished
ample authority for the erection of the buildings
near Philadelphia. The public stores lately buiit
here, are paid for out of an appropriation for mak-
ing a wharf. The gentleman, however, has eon-
tended that the articles of naval equipment could
not be preserved, without the covering and pro-
tection of stores, and thence he infers an author-
ity to erect them. I am not disposed to question
the soundness of the argument, but it applies with
equal force in vindication of the expense incurred
in erecting the stores, or the laboratory, as it has
been called, which is the subject of animadversion
in the report. We contended, on the committee,
that the case of the stores erected in this cityj
ought also to be stated in the report, on the same
ground with that of the laboratory, but distiuc-
tions satisfactory to the mind of the majority
excluded it.
I ask pardon for having detained the House so
long at this late hour. The subject is of consid-
erable importance, and I confess I have felt not
a little anxiety, to prevent a false impression be-
ing made by tne report upon some points. I see
no reason, which I had the means of explaining,
why gentlemen shauld not agree to recommit-
7th Con.
ment. It is not proposed to act upon the report
this session. The committee confess their task is
very imperfectly executed. Why send out such
an unfinished work to the world ? Subject it to*
the labor of another session. Five months were
scarcely sufficient to enable the committee to un-
fold the papers, which they were assigned to ex-
amine. In ^v^ years they could acquire but an
imperfect knowledge of the several accounts on
the files of the different offices. Upon a vast sub-
ject our time has been occupied with very small de-
tails. We have looked into half a dozen accounts,
and discovered a few questionable expenditures.
But as to the application of the millions, drawn
from the Treasury, for the service of the different
departments, it is still covered with the dust of
the offices.
I must confess that, according to my view, a
committee is altogether inadequate to the task
assigned to the Commitee of Investigation. In
my opinion, the business belongs to the Secretary
of the Treasury^ or, if you distrust him, create a
standing commission, with powers equal to the
object. We were charged to examine into the
accounts of all the public money, which had ever
been drawn from the Treasury.' Our duty con-
fines us the greater part of the day to the floor
of this House. How was it possible for a com-
mittee of seven, having everything to learn, with
the fragments of their hours, to accomplish an ob-
ject which would require the regular work of
years ? I conceive the subject, if gentlemen hav«
serious impressions with respect to it, should be
sent to the Secretary of the Treasury. He has
already more knowledge relative to it, than a
committee would acquire during a whole Con-
gress; and if any important discoveries are to be
made, it may saiely be trusted that he wiU bring
them to light.
Mr. Nicholson said he rose again on this sub-
ject, merely to answer the observations of the gen-
tleman who bad spoken of the manner in which
business had been done in that committee. He
(Mr. Bataro) said it was usual to direct the
chairman of committees in what way the report
was to be made, and presented for acceptance.
Having very little of this kind of business to do,
Mr. N. said he was not very conversant in the
precise manner, but he thought it was usual for
the chairman to make propositions to the com-
mittee, f o call forth their attention. He knew of^
no way to facilitate business so much,*asby bring-
ing in a sketch of a report, comprehending the
principal features which the papers before that
committee exhibited. This he did on the ninth
o( April : other business prevented it being done
sooner. The length of the report, comprehending
all the principles exhibited to view, and including
the balances therein drawn, and afterwards copy-
ing it, took a considerable length of time. Being
then presen^d to the committee as mere propo-
sitions, which they might strike out or amend at
pleasure, (which was last Tuesday,) it was resolved
to apply to Mr. Stoddert for his answer to that part
of tne report concerning him. That was done.
It was afterwards proposed that Mr. Stoddert's
1283
HISTORY OF CONGRESS.
1284
H. OF R.
Disburaement of Public Moneys,
May, 1802.
answer should become a part of the report. This
was overruled. A new proposition was then made,
that Mr. Dawson's case should be made a part of
the report. This the majority thought improper
also. Proposition was then made that Mr. Tracy
should be beard. A letter written by the gentle-
man from Delaware to him, for that purpose, was
handed to the chairman to sigD, but another gen-
tlemen thought it better to wait on Mr. Tracy in
person. This was agreed to with some amend-
ment. The report was then postponed till the
subsequent day, to hear what Mr. Tracy might
say. The committee then met at nine o'clock
and waited till twelve, but Mr. Tracy did not
come; the report was tiierefore made up without
hearing him. These facts he had thought proper
to state, that the House might exonerate the com-
mittee from having done wrong.
Mr. Randolph said his illness, and the length
of the sitting, rendered him too fatigued to pro-
ceed far in the investigation of the observations
of the gentleman from Delaware, but he felt one
observation so strongly merited reply, that he could
not abstain from rising ; he meant the particular
wherein Mr. Dawson and Mr. Tracy were paral-
leled. He says, the difference is only in the name
of the parties, but he has failed to prove this sim^
ilarity. The difference is so palpable that no man
can fail to perceive the dissimilarity (with the ex-
ception, I must say, of the gentleman from Dela-
ware.) Mr. Tracy was a member of the Senate
of the United States, when he received his ap-
pointment. That he was blameable for taking,
or precluded from accepting it, no one will say ;
unless it can be proved to have been an office,
created while he was a member of the Senate.
But this was not the case with Mr. Dawson. Mr.
Tracy being a member of the Senate, I will say
that his constituents had no power whatever to
revoke their confidence in him. because he did not
return to their suffrages. Tne other gentleman
was a private citizen, and the act of placing con-
fidence in him, obtained after his appointment and
during his absence on the mission. This was an
act for which he was not responsible to any man
upon earth, and, therefore, it does not belong to
this House. Another distinction in the cases is,
that Mr. Tracy accepted an emolument for servi-
ces rendered, at the same identical time that he
was receivinff his mileage as a Senator. He cer-
tainly, therefore, received double pay for his ser-
vices. If Mr. Dawson had received his pay as
Member of Congress, and his compensation for
his mission to France at the same period, the
cases would have been so far similar. But it was
not so, for his foreign mission cea.sed long before
the House sat. Mr. Tracy received emolument
at that time, for an office wltich he could not and
did not fill ; and which, if he had filled, was
totally^ incompatible with the office of Senator.
This IS a true distinction between thecases. The
question whether a person holding an office under
the Government is eligible to a seat in this House,
might easily have been determined by the gen-
tleman, and the question whether Mr. Dawson
was eligible to his seat, might also have been de-
termined by him ; because Mr. Dawson, submit-
ting to the House, \^hen he took his seat, whether
or no it was proper, was publicly invited, because
it was considered tnat ai foreign mission ivas an
exceptionable case ; and for this reason, because
the person is elected by the people, when, from the
nature of the case, he must be ignorant of his
having been the depositary of their confidence.
If, therefore, there is any objection, that objection
is removed by this necessary event. But the case
of Mr. Tracy is totally different : he not only
received and held two commissions at the same
time, but he also received the double emol a ments.
With respect to the double allowance for travel,
the cases of the two gentlemen were mentioned
in the Senate as parallels. I will remark that
this is a case that does not come before this House,
and we are told that it was not offered to the Com-
mittee. Indeed, how can we act at all npon the
informal, inofficial, and unfounded statements of
the gentleman who preceded me ? Indeed I should
lament if thi9 were a fact : my knowledge of, and
acquaintance with one of the gentlemen spoken
of, (Mr. Stone,) is such, that to parallel it with
the case of Mr. Tracy, would make me lament
exceedingly. Indeed I cannot conceive, how they
could be said to receive double compensation : they
received their full pay for their services in this
House, till the fourth of March ; they went into
the Senate chamber under a new appointment,
but they did not in any way hold at the same
time two distinct offices, or receive emoluments
in that view. I do not mean, however, to defend
the usage of the Senate in tha( particular, because
though I cannot call it corrupt,.! must call it an
abuse ; but being an usage it was received.
Another parallel mentioned, was that of bnild-
ing stores on the public ^rounds in this city, and
the military arsenal or laboratory at Philadelphia.
Now it appears to me, that you cannot very ^isily
define the term '^ navy yard," without these ap-
purtenances to preserve the materials in. But
there is a material distinction, between building
on ground where we have the right of soil and
jurisdiction, and building upon the ffround of oth-
ers. Of what importance is it to dwell on these
cases, in order to prove that it is unnecessary to
recommit the report ? It amounts to nothing, bat
that different officers of the Government have pat
different constructions on the same law. Does
this invalidate the report or the reasoning of the
committee 1 Does it disprove the facts stated, or
invalidate the charges exhibited against A or B ?
The gentleman really reminded me of the ex-
ertions of a counsellor defending a criminal at the
bar of justice. But I would asx, does it diminish
the crime of A or B, that C and D have com-
mitted the like crimes? This is a strange mode
of defence, though not unusually offered.
Upon the whole, as the lateness of the hour nor
my strength will admit of enlargement, I would
observe that the committee were appointed to
make certain inquiries ; they have reported upon
those inquiries, and now you are to be told that
because different authorities have put different
constructions upon the law« the>report must be re-
1285
HISTORY OP CONGRESS.
1286
Mat, 1802.
Ainendment8 to the CcTislituiion.
H.ofR.
committed! Sir, this will be no way ever to dis-
cover and bring to light improper conduct ; we
did not wish to know their construction. The
committee have re'ported in a manner and tem-
per hij^hly honorable to them, and I trust we shall
not offer to give a kind of counter report, by send-
ing it back to them^ when there is no reason for
that measure. This will be giving a color to
transactions whose illegality is evident. I see no
force in any argument used in favor of the motion.
Mr. GaiswoLD read, without comment, a cer-
tificate from the Secretary of the Senate, that
Mr. Stone and Mr. Sheafe did receive their mile-
age from the Senate, for their coming and return
to attend the Senate, on the fourth of March.
The question was then taken on the motion to
recommit the report, and negatived — yeas 22,
nays 46, as follows :
Yeas — James A. Bayard, Thos Boude, John Gamp-
bell, Mananeh Cutler, Samnel W. Dana, John Daven-
port, Abiel Foster, Calvin Goddard, Roger Griswold,
8eth Hastings, Archibald Henderson, Benjamin Huger,
Lewis R. Morris, Thomas Morris, Nathan Read, Wm.
Bhepard, John Stanley, Benjamin Tallmadge, Samuel
Tenney, George B. Upham, Lemuel Williams, and
Henry Woods.
Nats — Willis Alston, John Archer, John Bacon,
Theodoras Bailey, Phanuel Bishop, Richard Brent,
Robert Brown, Matthew Clay, John Clopton, John
Condit, Richard Cutts, Thomas T. Davis, William
Dickson, Lucas Elmendorf, Wm. Eustis, John Fowler,
Edwin Gray, John A. Hanna, Daniel Heister, Joseph
Heister, James Holland, David Holmes, Michael Leib,
John MiJledge, Samuel L. Mitchill, Thomas Moore,
James Mott, Anthony New, Thomas Newton, jun.,
Joseph H. Nicholson, John Randolph, jr., John Smilie,
John Smith, of New York, John Smith, of Virginia,
Henry Southard, Richard Stanford, Joseph Stanton,
jun., John Taliaferro, jun., David Thomas, Philip R.
Thompson, Abram Trigg, John Trigg, Philip Van
Cortlandty John P. Van Ness, Joseph' B. Varaum, and
Robert WUliams.
AMENDMENTS TO THE CONSTITUTION.
Mr. Van Cortlandt moved that the House
do now, according to the standing order of the
d&y, resolve itself mto a Committee of the whole
House on the state of the Union, to take into
consideration a motion' referred to them on the
i^ineteenth of February last, in the form of a con-
current resolution of the two Houses, proposing
two articles of amendment to the Constitution of
the United States respecting the election of Presi-
dent and Vice President; to which committee
Were also referred certain resolutions of the Leg-
islature of the State of New York, to the same
effect.
Mr. HcGER thought the gentleman from New
York could not be serious. He held it a bad pre-
cedent at that late period of the session to attempt
to alter the Constitution. It mattered not, whether
he was for or against the proposed amendment,
ue should be opposed to agreeing to it at this late
day. He believed the Constitution to be the rock
of the Union ; and he doubted whether as good a
one could be formed, were the present one lost.
.He believed it had been formed by our most
distinguished statesmen with the greatest care.
Whenever, therefore, it was contemplated to alter
a part of tnis Constitution, it ought to be done
with the greatest circumspection. He confessed
that he trembled at the idea of altering it, thoueh
he was attached to that part of it which gave tne
right of altering it. As to this particular i)rovis-
ion, he was far from having made up his mind on
it. It does appear, on first blush, that the people
should designate tne persons voted for as Presi-
dent and Vice President ; but, on set;ond thoughts,
there were many reasons against it. Congress
having agreed to adjourn on Monday, it was im-
proper now to discuss the subject, as it was im-
possible to give it a full investigation. The more
important we deem the amendment, the greater
b the regard which should be paid to the mode of
adopting it ; and at this moment, when there is
scarcely a quorum of members present, if you
take it up, you in- some measure prevent a discus-
sion of it.
Mr. H. concluded by calling for the yeas and
nays on taking up the amendment.
Mr. Foster said he hoped the amendment
would not be taken up at this late hour. It would
be recollected that at an antecedent session he
had laid a similar resolution on the table, when it
had been refused by the House to take it up from
the late day of the session, though this amend-
ment had been offered at tne recommendation of
New Hampshire. As this treatment was thought
respectful to New Hampshire, Mr. F. did not
think that it would be disrespectful to New York.
Mr. Bayard wished to know whether it was
in order to move the postponement of the ques-
tion till November.
The Speaker said such a motion was not in
order, as the resolutions had been referred to the
Committee of the Whole on the state of the
Union.
Mr. Davis was sorry the gentleman from New
York (Mr. Van Cortlahdt) had thought proper
to place the House in so delicate a situation. Alter
suffering these resolutions to lav for some months,
they are now brought up on the last day, when
the House is not nrepared to investigate them,
though there may oe weighty considerations in
favor of them. He was. therefore, against taking
them up at present. Ir taken up, he should be
almost compelled to vote against them ; not, how-
ever, because he was really against them, but from
the manner in which they are ureed. Are gen-
tlemen prepared to say that the House is in a fit
state to investigate them? If there is a determi-
nation to carry them whether reasonable or not,
it is certain a majority may carry them. Haa
they been called up a month ago, he should have
been pleased ; but ne thought it the height of im-
prudence to push them now.
Mr. Van Cortlandt said he was sorry the gen-
tleman from South Carolioa (Mr. Huqer) was
uneasy at the disorder of the House. For his
part, he had never seen the House more orderly.
As to its being a late hour, that, he conceived, had
nothiog to do with the business, as the resolutions
had lain on the table for a long time, and he pre-
1287
HISTORY OF CONGRESS.
.1288
H. OP R.
Amendments to the Constitution,
May, 1802.
sumed every geDtleman, expecting to be called on
to vote on them, had made up his mind. As to
the remarks of the gentleman irom New Hamp-
shire, (Mr. Foster,; it cannot surely be a reason
with him to vole now against these resolutions,
because the House had formerly been against his
resolutions.
Mr. MoTT was sorry these resolutions were
taken up at this late hour. He did not hesitate to
say that he w;as in favor of them ; but he was
against taking them up at so late a day of the
session.
Mr. Elmendorf said, if the subject required
any particular investigation, he should be opposed
to taxing it up to-day. But it was so exceedmgly
plain that he was persuaded it ought not to take
up much of the time of the House. He cer-
tainly wished it had been taken up when there
was a fuller House ; but he thought it so impor-
tant, that it would at no time be improper to
adopt it by the vote of a Constitutional majority.
If it were important that the people should elect
the man of tneir choice, it ought to be adopted.
It must be evident to every gentleman, that in the
Convention there must have been great contrari-
ety of opinion on this point; and in practising
under the Constitution a great variety of evils
had been discovered. As, therefore, there had
been a practical demonstration of the evils of the
present plan, he believed the public mind was
prepared to receive the amendment. This being
a self-evident truth, he should vote in favor of
adopting the amendment at this time.
Mr. Bayard felt strongly impressed by the rea-
sons which had been assigned in point of time.
The subject was not totally novel to him ; but
though he had heard it spoken of, expecting that
it would be reguUrly brought up, he nad not ex;
amined it in proportion to its magnitude. He
believed we ought to be extremely cautious in
amending the Constitution, as he believed that no
instrument bad been better weighed in all its
parts. He confessed he was puzzled to account
for the regulations pres:cribed m the election of a
President and Vice President ; yet he was per-
fectly satisfied there must have been very strong
reasons for it, from his reliance on the talents of
those who formed the Constitution. He had,
however, no hesitation in saying, from all his re-
flections on the subject, that he was inclined to
be in favor of a discrimination of the individuals
voted for as President and Vice President, as
well as in favor of districts. But he believed it
very improper at this late hour to agitate the sub-
ject, and he considered it a bad precedent at the
end of a session to make any innovation in the
Constitution. However immaterial any amend-
ment might appear to be, it ought to be very cir-
cumspectly examined; for often our first impres-
sions are erroneous, and we are induced, on mature
reflection, to change them. He was, therefore, in
point of time, agamst taking up the resolutions;
he thought it improper, when tne members were
occupied in prepanng to depart, in packing up
their clothes, with which they had packed up many
of their ideas; when we are here, barely to go
through the formalities attending the final {»ssage
of bills. He concluded by observing, that be r^
peated it. that he was friendly to the ameDdment,
but hostile to taking it up at that time.
The question on taking op the resolutions was
then taken by yeas and nays, and carried— jeas
38, nays 30, as follows :
Yeas — Willis AlBton, John Archer, John Bacon,
TheodoruB Bailey, Fhanuel Bishop, Robert Brown,
Matthew Clay, John Clopton, Ridiard Cutti, Jok
Dawson, William DickBon, Lucas Elmendorf, Edwin
Gray, John A. Hanna, Daniel Holster, Joseph Heister,
James Holland, David Holmes, Michael Leib, John Mil-
ledge, Samuel L. Mitchill, Thomas Moore, Tliomas
Morris, Thomas Newton, jr., John Randolph, jr., John
Smilie, John Smith, of New York, John Smith, of
Virginia, Samuel Smith, Richard Stanford, Joseph
Stanton, jr., John Taliaferro, jr., Philip R. Thompcon,
Abram Trigg, John Trigg, Philip Van Cortlandt, Jo-
seph B. Vamum, and Robert Williams.
Nats — James A. Bayard, Thomas Bonde, John
Campbell, Manasseh Cutler, Samuel W. Dana, John
Davenport, Thomas T. Davis, William Evstis, Abiei
Foster, Calvin Goddard, Roger Griswold, Seth Has-
tings, William Helms, Archibald Henderson, Benja-
min Huger, Thomas Lowndes, Lewis R. Morris, Junes
Mott, Thomas Plater, Nathan Read, William Shepaid,
Henry Southard, John Stanley, John Stewart, Benja-
min Tallmadge, Samuel Tenney, Thomas Tillmghast,
George B. Upham, Peleg Wadsworth, and Lemod
Williams.
Mr. Griswold wished to know, whether, on a
preparatory question, the concurrence of two-
thirds were required, as this would form a prece-
dent.
The Speaker decided that two-thirds were not
necessary.
The House resolved itself into a Committee of
the Whole— Mr. S. Smith in the Chair.
As soon as the Cbairman had taken the Chair,
Mr. BAYARn rose, and obaerved. that he beliered
the question to be determined was on going into
Committee on the state of the Union.
The Chairman said, the decision was for going
into a Committee for the purpose of taking into
consideration an amendment to the Constitution,
" That in all future elections of President and
* Vice President, the persons voted for shall be par-
' ticularly designated by declaring which is roied
* for as President,and which as Vice President."
The Speaker said that question had not been
stated from the Chair. The only question was on
going into Committee on the slate of the Union j
and It was now competent to any member to offer
any resolution on the state of the Union, or the
House may consider the subject notified as con-
tinued.
Mr. Batard moved for that proposition of
amendment that related to a division of each
State into districts.
The Chairman, having read it, said he had al-
ways considered it as the practice, that the Cotn-
inittee must take up that resolution on wbichit
had been moved to go into committee. He, there
fore, considered the other resolutions as before the
Committee.
Mr. Huger.— I ask if the Committee has noti
1289
HISTORY OF CONGRESS.
1290
Mat, 1802.
Amendments to the Om»tUution.
H. OP R.
right to take up which resolution it pleases? If
they have, I hope the motion of the gentleman
from Delaware (Mr. Bayard) will prevail.
The Chairman. — The question is already de-
cided.
Mr. Batard thought there was great justness
in the argument of the ffenileman froo) Ken-
tucky, (Mr. Davis,) that tne House was not in a
state to make an amendment to the Constitution.
He could hardly believe that, had it been proposed
to amend the Constitution on an earlier day, it
would have been done without a word o( expla-
nation beiftg uttered. He believed this was doing
too much, and without the defect of the former
system being pointed out. He believed there was
not a more important opinion than that the instru-
ment from which we derive our power, and the
nation its liberty, should be touched with a cau-
tious hand. He believed gentlemen would see
that this was not the time to touch it, and they
will say, we will not agree to this amendment
until the other, for districting the States, is first
agreed to ; he, therefore, moved that the Com-
mittee should rise.
Mr. Bacon hoped the Committee would not
rise until other reasons were assigned than he had
heard. The House had just agreed to take up the
resolutionSj and it is now moved to recede from
the determination of the House without any rea-
son being assigned for the change. The question
was important, but not novel. He believed that
«very citizen called upon to give his vote had paid
particular attention to, and had made up his mind
upon it. This was the case with himself. He
had long been of opinion that such an amend-
ment was very important, and even necessary,
and he should contmue to think so until he had
heard satisfactory reasons in opposition assigned.
He was disposed to listen with tne greatest atten-
tion and candor to the arguments of gentlemen.
The gentleman from Delaware urged as a reason
against taking up this amendment its great import-
ance ; and now he is for taking up another amend-
ment infiaitely more important.
Mr. B. concluded by saying that as this was a
subject on which the welfare of the United States
depended, in his opinion the House could not ex-
cuse itself from taking it up.
Mr. MiTCHiLL said ne had almost despaired of
this subject being acted upon after the late decis-
ion of tne House. He was, however, very glad
to find the House now disposed to take it up. He
was much surprised that tne gentleman from Del-
aware wanteu information, not only from his
usual attention to Constitutional questions, but
from the part he took in the Presidential election.
He believed the question to be very plain, and one
which had been well considered by every citizen
in the United States. Under the Constitution
electors are to vote for two persons, one of whom
does not reside in the State of the electors; but
it does not require a designation of the persons
voted for. Wise and virtuous as were the mem-
bers of the Convention, experience has shown
that the mode therein adopted cannot be carried
into ope ration ; for the people do not elect a per-
son for an elector who, they know, does not in-
tend to vote for a particular person as President.
Therefore, practically, the very thing is adopted,
intended by this amendment. If this proposition
is now adopted by us, it will still have to be sanc-
tioned by the other branch of the Legislature,
and afterwards by three-fourths of the States.
For these reasons, Mr. M. thought this amend-
ment ou^ht to be adopted. It ought to be adopted,
because it had been maturely considered ; because
it had been recommended by several States, and
because serious inconveniences had been, ana still
more serious inconveniences might be experienced
under the present mode.
Mr. Dana said he was for the Committee rising,
as this was not a proper time to act on so import-
ant a subject. He knew that the gentleman trom
Massachusetts (Mr. Bacon) had said his mind was
made up, though he was ready to hear any argu-
ments against the amendment. He has told us
that he guessed every member was ready to act ;
but as this was only a guess, others may guess as
well as he. He also thought his friend from Del-
aware (Mr. Bayard) inconsistent; but the very
remark of the gentleman from Massachusetts
fortified the correctness of the Observation made
by his friend from Delaware, who had said one
of the proposed amendments is important, the
other is still more important, and thence the ne-
cessity of more time for deliberation.
If the subject of amending the Constitution be
taken up, a second question may arise, whether a
Vice President is wanted at all; whether that of-
fice was not created solely to influence the purpo-
ses of the present mode. He believed the jour-
nals of the Convention would show that the office
of Vice President was not introduced till this
mode was laid down. Other amendments may
be found necessary. He was willing to consider
that part of the Constitution which related to the
apportionment of representatives, and to determine
whether the representatives should be in propor-
tion to the whites, or in proportion to the whites
compounded witn slaves. He believed, also,
when an amendment was proposed, it was proper
to view all its parts, and see whether an amend-
ment apparently necessarv would not materially
differ from other parts of tne Constitution equally
necessary. For this examination there was not
time.
Mr. Hdger said he was willing to acknowledge
that his bias was in favor of the amendment;
but he did not like to be obliged at this late mo-
ment to vote on it. without having time to con-
sider it himself, ana without giving time to others
to investigate it. Besides, it was evident, that
if the amendment for a discrimination was first
adopted, the other amendment for districts may
not be adopted; and in the opinion of some gen-
tlemen it was important to adopt both. This
measure is now forced upon us. In this sitting
we are obliged to vote in the negative, though
rather in favor of the amendment. But when
thus improperly forced upon us, we think it 'the '
safest course to vote against it.
Where is the necessity of this precipitation ?
1291
HISTORY OF CONGUESS.
1292
H. OP R.
Amendments to the Constitution.
Mat, 1802.
There cannot be party motives in. the measure;
for the same Legislature will meet the next ses-
sion. In these circumstances, he thought it an
act of cruelty to force those to vole who are not
prepared. He said his mind was not made up,
nor did he believe the minds of the community
. were. He could not say from his own personal
knowledge what was the wishes of his constitu-
ents; though he was rather inclined to think they
were for the amendment. He believed the de-
sign of the Constitution in originating this busi-
ness in these two Houses of Congress, was to
have it investigated in a body whose members
came from every part of the Union, and by hav-
ing the debate published in every part of the
Union to prepare the people correctly to judge.
He, therefore, conceived it of immense import-
ance that every amendment should be maturely
investigated. He said, he looked round and scarce-
ly saw a quorum. Are gentlemen prepared to
offer arguments? He did not like to allude to
party; but do not gentlemen know that those
who agree with him have more than a third in
this House when it is full? He did not know that
that was now the case. In the last count we had
only sixty-eight Votes, and yet with these num-
bers we are called upon to decide, at the end of
the session, a Constitutional question.
The question was taken on the Committee
rising, and lost — ayes 25.
The question was then taken on the resolution
of amendment, on which there were — ayes 42,
noes 22.
The Chairman. — The question is lost.
Mr. Varnum said he apprehended the Commit-
tee were to vote by simple majorities; this is a
preparatory step, and the House will decide by a
vote of two-thirds.
Mr. Nicholson was clearly of this opinion,
that the Committee ought to decide in the usual
way.
Mr. Qribwold said he did not know how the
fentleman could find the mode of deciding in
/ommittee but by that practised in the House.
Mr. Elmendorf thought no more than a sim-
ple majority was required. He, therefore, ap-
pealed from the decision of the Chair. After
some explanation, Mr. E. observed that as the
House would have to decide upon the same point,
he would withdraw his motion of appeal.
The Committee ^rose, and reported their disa-
greement to the amendment — two-thirds of the
members, the Constitutional number, not con-
curring in it.
The question was carried — ayes 42 — for taking
up the report.
The House immediately took up the report;
when
The Speaker put the question on concurring
with the report or the Committee of the Whole
in their disagreement to the amendment.
Mr. HuoER moved to postpone the further con-
sideration of the amendment to the third Mon-
day in November.
Mr. H. said he would not repeat the arguments
he had before used. Of those against taking up
the amendment at this time, there were, at least
the gentleman from Delaware and himself who
were likely to be in favor of it, if taken up at a
proper time. He should, therefore, regret if, by
voting in the negative, it should be lost. He
wished it to be understood, and particularly by
his copstituents, that he voted against it, not be-
cause he was really against the amendment, bat
from the consideration of the improper time at
which it was urged. He concluded by calling
for the yeas and nays.
Mr. Van Cortlanut said he was very sorry
he could not oblige the gentleman (Mr. Hcger)
with the delay he solicited, and he was also very
sorry that that gentleman could not oblige him-
self and his constituents at the same time. He
regretted that it was so late in the session ; but
had not the subject been before the House for
months, and before the people for years ? The
gentleman says he wants time — to repeat a hun-
dred and a hundred times what the House had
heard before. At this endless repetition Mr. Van
C. was surprised. He said, he should in many
cases have taken a part in debate, if other gen-
tlemen had not expressed the same ideas which
he entertained himself. He did not wish to say
that other gentlemen had made long speeches for
the purpose of appearing in the newspapers;
though he must say the conduct of the gentle-
man from South Carolina looked like it. Mr.
Van C. concluded by observing that it was their
duty to do good, and if the adoption of this amend-
ment would have that effect, it could never be too
lale to adopt it.
Mr. HuGER said however favorable that gentle-
man may be to dumb legislation, he confessed he
was inimical to it.
The question of postponement was then taken
by yeas and nays, and lost — yeas 28. nays 44, as
follows:
Yeas — ^James A. Bayard, Thomas Boude, John
Campbell, John Condit, Manasseh Cutler, Samuel W.
Dana, John Davenport, Abiel Foster, Calvin Goddanl,
Roger Griswold, Seth Hastings, William Helms, Archi-
bald Henderson, Benjamin Huger, Thomas Lowndes,
Lewis R. Morris, James Mott, Thomas Plater, Xatfaan
Read, William Shepard, Henry Southard, John Stan-
ley, Benjamin Tallmadge, Samuel Tcnney, Thomas
Tilllnghast, George B. Upham, Peleg Wadsworth, and
Lemuel Williams.
Nats — Willis Alston, John Archer, John Bacon,
Theodorus Bailey, Phanuel Bishop, Robert Brown,
Matthew Clay, John Clopton, Richard Cutts, Thomas
T. Davis, John Dawson, William Dickson, Lucas H-
mendorf, William Eustis, John Fowler, Edwin Gray,
John A. Hanna, Daniel Heister, Joseph Heister, James
Holland, David Holmes, Michael Leib, John Milledge,
Samuel L. Mitchill, Thomas Moore, Thomas Morris
Thomas Newton, jr., Joseph H. Nicholson, John Ran-
dolph, jr., John Smilie, John Smith, of New Yoii,
John Smith, of Virginia, Samuel Smith, Richard Stan-
ford, Joseph Stanton, jr., John Taliaferro, jr., David
Thomas, Philip R. Thompson, Abram Trigg, John
Trigg, Philip Van Cortlandt, John P. Van Ness, Jo-
seph B. Varnum, and Robert Williams.
The question recurred, on concurring in the
1293
HISTORY OP CONGRESS.
1294
May, 1802.
AmendTnenta to the CoTistittUion,
H. OP R.
report of the Committee in tlieir disagreement to
the amendment.
Mr. Bayard said he was sorry the subject was
pressed upon them. It had not undergone in his
mind a mature consideration. He considered his
giving a TOte of concurrence as operating simply
a postponement till November. He had voted
for the postponement, and he would vote for a
concurrence. Next session the subject may be
taken up, and maturely considered.
Mr. Nicholson inquired whether the question
of concurrence required two-thirds.
The Speaker. — This is the final question, and
therefore requires two-thirds. All preparatory
questions only require a majority.
Mr. Varnum asked whether the question would
be final. It appeared to him that after this is de-
cided, there will be another question on agreeing
to the resolution itself.
The question was taken, by yeas and nays, on
agreeing to the report, and lost — yeas 24, nays
48 — two-thirds voting against concurrence, as
follows:
YxAS — James A. Bayard, Thomas Boude, John
Campbell, Manasseh Cutler, Samuel W. Dana, John
Davenport, Abiel Foster, Calvin Goddard, Roger Gris-
wold, Seth Haatings, Archibald Henderson, Benjamin
Huger, Thomas Lowndes, Lewis R. Morris, Thomas
Plater, Nathan Read, William Shepard, John Stanley,
Benjamin Tallmadge, Samuel Tenneyl Thomas TU-
linghast, George B. Upham, Peleg Wadsworth, and
Lemuel Williams.
Nats — Willis Alston, John Archer, John Bacon,
Theodonis Bailey, Phanuel Bishop, Robert Brown,
Matthew Clay, John Clopton, John Condit, Richard
Cutts, Thomas T. Davis, John Dawson, William Dick-
son, I^ucas Elmendorf, William Eastis, John Fowler,
Edwin Gray, John A. Hanna, Daniel Heister, Joseph
Heister, Wm. Helms, James Holland, David Holmes,
Michael Leib, John Milledge, Samuel L. Mitchill,
Thomas Moore, Thomas Morris, James Mott, Thomas
Newton, jr., Joseph H. Nicholson, John Randolph, jr.,
John Smilie, John Smith, of New York, John Sgiith,
of Virginia, Samuel Smith, Henry Southard, Richard
Stanford, Joseph Stanton, jr., John Taliaferro, jr., David
Thomas, Philip R. Thompson, Abram Trigg, John
Trigg, Philip Van Cortlandt, John P. Van Ness, Joseph
B. Varnum, and Robert WiUiams.
Mr. Huoer said he would repeat what he had
said^efore, viz : that he did not Tote against the
axDendment because he was opposed to it, but be-
cause he was decidedly opposed to the time in
which it was proposed.
Mr. Huger moved the postponement of the
third reading of the resolution till Monday, lost —
ayes 25.
Resolved, That the said resolution be read a
third time to*day.
The engrossed resolution was afterwards brought
in, and read a third time, when the question was
taken on it by yeas and nays, and carried — yeas
47, nays 14, as follows:
YxAs — John Archer, John Bacon, Theodonis Bailey,
Phanuel Bishop, Richard Brent, Robert Brown, Mat^
thew Clay, John Clopton, John Condit, Richard Cutts,
Thomas T. Davis, John Dawson, William Dickson,
Lucas Elmendorf, William Eustis, John Fowler, Ed-
win Gray, John A. Hanna, Daniel Heister, Joseph
Heister, James Holland, David Holmes, Michael Leib^
John Milledge, Samuel L. Mitchill, Thomas Moore»
James Mott, Anthony New, Thomas Newton, jr., Jo-
seph H. Nicholson, John Randolph, jr., John Smilie,
John Smith, of New York, John Smith, of Virginia,
Samuel Smith, Henry Southard, Richard Stanford^
Joseph Stanton, jr., John Taliaferro, jr., David Thoma«»
Philip R. Thompson, Abram Trigg, John Trigg, Philip
Van Cortlandt, John P. Van Ness, Joseph B. Varnum,
and Robert Williams.
Nats — James A. Bayard, Thomas Boude, Manasseb
Cu^er, John Davenport, Roger Griswold, Archibald
Henderson, Benjamin Huger, Lewis R. Morris, Nathan
Read, John Stanley, Benjamin Tallmadge, Samuel
Tenney, George B. Upham, and Lemuel WiUiams.
Ordered^ That the Clerk of the House do carry
the said resolution to the Senate, and desire their
concurrence.
MoNOAY, May 3.
Ordered^ Ttiat there be a call of the House this
day at two o^clock in the afternoon.
Resolved^ That the President of the United
States be reouested to cause the proper officers to
prepare aod lay before the House, during the first
week of the ensuing session of Congress, the fol-
lowing statements:
A detailed account of the <expenditure and applica-
tion of all public moneys which have passed through
the Quartermaster General's department, from the fint
day of January, one thousand seven hundred and
ninety-seven, to the thirty-first of December, one thou-
sand eight hundred and one.
A similar account of the expenditure of all public
moneys which have passed through the Navy agenta*
A aimilar account of the expenditure and application
6f all the moneys drawn out of the Treasury for the
contingencies of the Military and Naval Establishments.
Copies of the contracts made by the 'Navy Depart-
ment for the purchase of timber and stores, and the
accounts of the moneys paid under such oontraets.
Ordered^ That Mr. Robert Willtamb and
Mr. Thomas Morris be appointed a committee
to present the foregoing resolution to the President
of the United States.
A message from the Senate informed the House
that the Senate have passed the bill, entitled " An
act to amend an act, entitled ' An act for the re-
lief of sick and disabled seamen," with two
amendments; io which they desire the concur-
rence of this House. The Senate have also passed
the bill, entitled ^*An act to incorporate the mhab-
itants of the City of Washington, in the District
of Columbia," with several amendments; to which
they desire the concurrence of this House.
The House proceeded to consider the amend-
ments of the Senate to the bill first mentioned
in the said message, and the same being severally
twice read, were agreed to.
The House proceeded to consider the amend-
ments proposed by the Senate to the bill, entitled
'' An act to incorporate the inhabitants of the City
of Washington, in the District of Columbia:"
Whereupon, Resolved^ That this House doth
agree to the said amendments.
1295
HISTORY OF CONGRESS.
1296
H. OF R.
Georgia Limits — The District of Columbia.
Mat. ldQ2.
On motioD, Ordered, That the call of the House
directed by a vote of this day, to be at two o'clock^
be postponed until four o'clock in th^ afcernoon.
GEORGIA LIMITS.
Mr. Gribwold moved the appointment of a
eommittee to bring in a bill to repeal an act for
the amicable settlement of limits with the State
of Qeorgia, &c.
[The object of this motion was to prevent the
agreement lately made between the Commission-
ers of the United States and of Georgia from
going into effect before, the next session of Con-
gr^s; the said agreement declaring that the seftle-
ment shall be conclusive, unless Congress shall
repeal within six months the above law.]
This motion was supported by Messrs. Gais-
WOLD, Henderson, and Davis, and opposed by
Messrs. Milledge, S. Smith, and Elmendorf.
When the yeas and nays were taken, and the
motion lost — yeas 24, nays 36, as follows :
YxAS-^Thomas Boude, John Campbell, Manasseh
Cutler, John Davenport, Abiel Foster, Calvin Goddard,
Roger Griflwold, John A. Hanna, Seth Hastings, Archi-
bald Henderson, Thomas Lowndea, Lewis R. Morris,
Thomas Morris, Thomas Plater, Nathan Read, William
Shepard, John Stanley, Benjamin Tallmadge, Samuel
Tenney, Thomas Tillinghast, George B. Upham, Peleg
Wadsworth, Lemuel Williams, and Henry Woods.
Nats — Willis Alston, John Archer, John Bacon,
Theodorus Bailey, Richard Brent, Robert Brown, John
Clopton, John Condit, Richard Cutts, John Dawson,
William Dickson, Lucas Elmendorf, John Fowler, Ed-
win Gray, WiHiam Helms, James Holland, David
Holmes, John Milledge, Thomas Moore, James Mott,
Anthony New, Thomas Newton, jun., John Smilie,
John Smith, of New York, John Smith, of Virginia,
Samuel Smith, Richard Stanford, John Taliaferro, jr..
Band Thomas, Philip R. Thompson, Abram Trigg,
John Trigg, Philip Van Cortiandt, John P. Van Ness,
Joseph B. Vamum, and Robert Williams.
DISTRICT OF COLUMBIA.
A message from the Senate informed the House
that the Senate have passed the bill, entitled
" An *act additional to, aod amendatory of, an act,
entitled ^ An act concerning the District of Co-
lumbia,'' with several amendments ; to which they
desire the concurrence of this House.
The most material amendments authorize the
erection of a jail, appropriating therefor $17,000,
and the organization of the militia by the Presi-
dent.
The amendment which authorizes the erection
of a jail gave rise to some debate ; in which it
was supported by Messrs. Taliaferro and Hugbr,
and opposed by Messrs. Elmendorf, Davis, and
Varnum.
Mr. Southard moved to strike out $17,000 and
insert $8,000. This last motion prevailed ; and,
80 amended, the amendment of tne Senate was
agreed to — yeas 32, nays 26, as follows :
YxAs — Willis Alston, John Archer, John Bacon,
Theodorus Bailey, Richard Brent, John Campbell,
John Clopton, Manasseh Cutler, John Dawson, Wm.
Dickson, Abiel Foster, Calvin Goddard, Roger Gris-
wold, Daniel Heister, William Helms, Archibald Hen-
derson, David Holmes, Benjamin Huger, Lewis R^
Morris, Thomas Morris, Anthony New, Thomas New-
ton, jr., Thomas Plater, Nathan Read, John Smith, of
Virginia, Henry Southard, John Taliaftrro, jr., Samoei
Tenney, Philip R. Thompson, Philip Van Cortiandt
John P. Van Ness, and Henry Woods.
Nats — ^Thomas Boude, Rc^rt Brown, John Condit,
Richard Cutts, John Davenport, Thomaa T. Davis,
Lucas Elmendorf, John Fowler, John A. Hanna, Jo-
seph Heister, Michael, Leib, Samuel L. Mitchill, Thos.
Moore, James Mott, John Smilie, John Smith, of Xew
York, Samuel Smith, Richard Stanford, Joseph Stan-
ton, jr., John Stewart, Benjamin Tallmadge, David
Thomas, Abram Trigg, John Trigg, Joseph B. Vamom,
and Robert Williams.
On the question that the House do agree to the
said twelfth amendmentof the Senate, a:^ amended,
it was resolved in the affirmative.
Resolved^ That this House doth also a^ree to
all the other amendments proposed by the Senate
to the said bill.
The House then adjourned until five o'clock,
post meridian.
FIVE o'clock^ p. h.
The House met pursuant to adjouranaeat.
A message from the Senate informed the House
that the Senate have disagreed to the resolution oi
this House, in the form of a concurrent resala-
tion of the two Houses, ^* proposing an article of
amendment to the Constitution of the United
States, respecting the election of President and
Vice President ;" two-thirds of the members pre>
sent in the Senate not having concurred in their
agreement to the same.
On motion, Ordered, That Mr. Griswold and
Mr. Samuel Smith be appointed a committee, on
the part of this House, jointly, with such commit-
tee as may be appointed on the part of the Senate,
to wait on the President of the United Sutes. and
notify him of the proposed recess of Congress.
A message from the Senate informed the House
that the Senate have appointed a committee oa
their part, jointljr, with the committee appointed
on the part of this House, to wait on the Presi*
dent of the United States, and notify him of the
proposed recess of Congress.
Mr. GRiswoLn^ from the committee appointed
on the part of this House, jointly, with the com-
mittee appointed on the part ot the Senate, to
wait on the President of the United Statesl and
notify him of the proposed recess of Congress,
reported that the committee had performed that
service; and that the President signified to them
he had no farther communication to make during
the present session.
Ordered^ That a message be sent to the Senate
to inform them that this House, having completed
the business before them, are now about to ad-
journ until the first Monday in Decei^ber next;
and that the Clerk of this House do go with the
said message.
A message from the Senate informed the House
that the Senate, having completed the Legislative
business before them, are now ready to adjoura.
Whereupon,
The Speaker adjourned the House until the
first Monday in December next.
1297
HISTORY OP CONGRESS.
1298
Internal Taxes.
SUPPLEMENTAL SPEECH.
[The foUowing is the conelaaion of the speech of
GouTKUKKUB. MoRBis, deliTered in the Senate on tihe
3l8t of March, 1803, on the Repeal of the Internal
Taxes, — and which was unavoidably omitted, in its
proper place, while the Tolnme was in course of prints
ing. It should have been inserted in page 236, imme-
diately before Mr. Masok .]
Mr. MoRBis, in conclusion. — I hare heard it
said, that however improper it may- be to repeal
these taxes, it is now too late to object ; for that)
after the recommendation of oar First Magistrate,
they are considered by the people as no longer to
be paid. I will not question the veracity of those
who make this assertion, bat I must beg leave to
withhold my assent. The people of this country
know, that to their Representatives alone, is del-
egated the right of taxation. This is no part of
the Executive power. I will not say that the re-
commendatioa was unconstitutional. I will not
say that it was unjustifiable. But I will say that
it was imprudent. And if it does, indeed, involve
the consequence which has been stated, I must
add that it is injurious. It would have been more
proper to have left the unbiassed consideration of
this great subject to the two Houses of Congress.
But, sir, though I cannot approve, I will not con-
demn the conduct of our First Magistrate. He, I
Sresume, acted from what he conceived to be his
uty. Let us then imitate his example, and per-
form what on due advisement shall appear to be
our duty. Let me say, sir, that there is too much
of precipitancy, too much of rashness, in this re-
peal. It would be wiser to wait, until we possess
a knowledge of those facts on which a sound sys-
tem must be founded. Our experience of the past
g^ives no sufficient light for the future. There is,
moreover, during the present, and there will be for
some succeeding years, an unusual pressure of our
public debt, arismg from heavy instalments of for-
eign loans. This therefore, is not the moment to
make a change. I have indeed heard the advo-
cates of the proposed repeal say, they are desirous
of paying the public debt, not only according to
the terms to wnich we stand pledged, but at an
earlier day. If this be so, how can they think of
taking off ta;xes, or by what stranee invention or
device do they expect to pay debts by diminishing
income? I should have supposed that the best
-way to effect that object would be to increase our
revenues, lessen our expenses, and apply our whol^
means to. the payment of what we owe, steadily
and faithfully.
Mr. President, one word more. Hitherto, I have
considered this question on the broad ground of
Solicy, of expediency, and of public economy. I
ave endeavored to show that duties are the most
expensive species of tax. That, from a change
in the political affairs of the world, and in our
cwn particular situation, there is reason to sup-
pose our revenue will suffer considerable diminu-
tion. And that it is more than probable, duties so
high, as those under which our commerce now
labors, will be evaded. And thence, I have en-
deavored to draw the natural conclusion, that.
instead of repealing the internal taxes, we should
lessen the duties, and raise that part which is
taken off in the seaports, by direct tax in the coun-
try. All this was under the idea, that you had a
right to repeal these taxes. But, by recurring to
the first volume of your laws, in the 335th paj^e, ,
I find that the sixtieth section of an act laying^
duties upon spirits distilled within the United
States, runs thus :
^* And he it further emteted, That the net product
of the duties hereinbefore ^ecified, which shall be
raised, levied, and collected by virtue of this act, or so
much thereof as may be necessary, shall be, and is
hereby, pledged and appropriated for the payment of
the interest of the several and respective loans, which
had been made in fiweign countries, prior to th^ fourth
day of August last ; and also upon all and every the
loan and loans which have been and shall be made and
obtained pursuant to the act, entitled 'An act making
provision for the debt of the United States ;' and, ac-
cording to the true intent and meaning of the said act,
of the several provisions and engagements therein con-
tained and expressed, and subject to the like priorities
and reservations as are made and contained in and by
the said act, in respect to the moneys therein appropri-
ated, and subject to this farther reservation ; that is to
say, of the net amount or product during the present year,
of the duties laid by this act, in addition to those hereto-
fore laid upon spirits imported into the United States,
from any foreign port or place, and of the duties laid
by this act on spirits distilled within the United States,
and on stills ; to be disposed of, towards such purposes
for which appropriations shall be made during the pres-
ent session. And to the end, that the said moneys may
be inviolably applied in conformity to the appropriation
hereby made, and may never be diverted to any other
purpose, until the final redemption or reimbursement
of the loans or sums for the payment of the interest
whereof they are appropriated, an account shall be
kept of the receipts and disposition thereof, separate
and distinct from the product of any other duties, im-
post, excise, and taxes whatsoever, except those here-
tofore laid, and appropriated to the same purposes."
And, sir, I find that the sixty-second section of
the same act runs thus :
" And be it further enacted, That the- several duties
imposed by this act shall continue to be collected and
paid, until the debts and purposes for which they are
pledged and appropriated shall be fully discharged and
satisfied, and no longer : Provided alwaya. That no-
thing herein contained shall be construea to prevent
the Legislature of the United States, irom substituting
other duties or taxes of eqt^al value to all or any of the
said duties and imposts.''
This law was approved by Qeorqe Washing-
ton, on the third day of March, in the year 1791.
Now then, I ask, can we rightfully take off this
tax without laying on an equivalent, before our
debts are paid? I will not say that it is unconsti-
tutional; though while we yet had a Constitution.
I should have opposed it on that ground. I will
not say you have not the power to do it^ because,
under the new doctrine of^your Legislative omni-
r)tence, I see not the bounds of your power. But
remember well, and let me now call back to the
recollection of this Senate, what passed on a late
important occasion. It was asked, when we have
1299
HISTORY OF CONGRESS.
1300
Internal Taxes,
made a grant, can we resame it? When we have
contracted a debt, can we refuse to pay it? When
we have made a promise, can we violate it ? To
these questions it was answered no! Here is a
vested right in third persons. The Government
is bound. In the case of a debt it has received a
consideration, and the engagement taken with the
public creditor cannot be broken. I ask^then, what
words in our language, or in any language, can be
more full, more solemn, or form a contract more
sacred than those I have just read. The net
am(^nt of the duties is pledged to our creditors,
and appropriated to the payment of our debt; and
to the end that it may be inviolably applied in
conformity to that appropriation, and may never
be diverted to any other purpose, a separate ac-
count is to be kept, and it is again declared that
the duties shall continue to be collected and paid
till the debts for which they are pledged shall be
fully discharged and satisfied. If these terms be
not binding on the Legislature, let os hear the
form, if any can be found, of a contract more ob-
ligatory. 1 ask those who mean to TOte for this
repeal, what they meant by the declaration that
vested rights could not be resumed, and that ea-
gagements taken with public creditors could not
be broken? If by a wild exertion of licentioos
force we tear asunder these bands, can we again
ask of mankind any share of their confidence 1
Can we expect to enjoy credit when "we show
ourselves r^ardless of our plighted faith ?
Sir, I consider this repeal as inconsistent witb
the true interest of the great body of our people.
It appears to me dangerous both to oar reveoae
and to our commerce. But above ail, I consider
it as a flagrant violation of the public faith.
PUBLIC ACTS OF CONGRES-S;
PASSED AT THE FIRST SESSION OF THE SEVENTH CONGRESS, BEGUN AND HELD
AT THE CITY OF WASHINGTON, DECEMBER 7, 1801.
AN ACT for the apportionment of Repreaentatives
among the aeveral States, according to the second
enumeration.
Be it enacted by the Senate and Haute of Rep-
resentatives of the United States of America^ in
Congress assembled^ That from and after the third
day of March, one thousaod eight hundred and
three, the House of Representatives shall be com-
posed of members elected agreeably to a ratio of
one member for every thirty-three thousand per-
sons in each State, computed according to the rule
prescribed by the Constitution; that is to say:
within the State of New Hampshire, five; within
the State of Massachusetts, seventeen ; within the
State of Vermont, four ; within the State of Rhode
Island, two; within the State of Connecticut,
seven ; within the State of New York, seventeen ;
within the State of New Jersey, six; within the
State of Pennsylvania, eighteen ; within the State
of Delaware, one; within the State of Maryland,
nine ; within the State of Virginia, twenty-two ;
within the State of North Carolina, twelve; with-
in the State of South Carolina, eight; within the
State of Georgia, four; within the State of Ken-
tucky, six ; and within the State of Tennessee,
three members.
NATHANIEL MACON,
Speaker of the House of Representatives,
ABRAHAM BALDWIN,
President of the Senate^ pro tempore.
Approved, January 14, 1802.
TH. JEFFERSON,
President of the United States.
9
An Act concerning the Library for the use of both
Houses of Congress.
Be it enacted^ ^c.^ That the books and maps
purchased by direction, of the act of Congress,
passed the twenty-fourth of April, one thousand
eififht hundred, together with the books or libraries
which have heretofore been kept separately by
each House, shall be placed in the Capitol, in the
room Tvhich was occupied by the House of Rep-
resentatives, during the last session of the sixth
Congress.
Sec. 2. And be it further enacted, That the
President of the Senate and Speaker of the House
of Representatives, for the time being, be, and
they hereby are, empowered to establish such reg-
ulations and restrictions in relation to the said R-
brary, as to them shall seem proper, and,, from
time to time, to alter or amend the same : Pro-
videdj That no regulation shall be made repugnant
to any provision contained in this act.
Sec. 3. And be it further enacted, That a libra-
rian, to be appointed bv the President of the Uni-
ted States solely, shall take charge of the said
library; who, previous to his entering upon the
duties of his office, shall give bond, payable to the
United States, in such a sum, and with such secu-
rity, as the President of the Senate and Speaker of
the House of Representatives, for the time being,
may deem sufficient, for the safe keeping of such
books, maps, and furniture as may be confided to
his care, and the faithful discharge of his trust, ac-
cording to such regulations as may be, from time,
to time, established for the government of the said
library; which said bond shall be deposited in the
office of the Secretary of the Senate.
Sec 4. And be it further enacted^ That no
map shall be permitted to be taken out of the said
library by any person; nor any book, except by
the President and Vice President of the United
States, and members of the Senate and House of
Representatives, for the time being.
Sec. 5. And be it further enacted. That the
keeper of the said library shall receive for his ser-
vice^, a sum not oxceedmg two dollars per diem
for every day of necessary attendance; the amount
whereot, together with the necessary expenses in-
cident to the said library, after being ascertained
by the President of the Senate and Speaker of the
House of Representatives, for the time being,
shall be paid out of the fund annually appropria-
ted for the contingent expenses of both Houses of
Congress.
Sec. 6. And be it further enacted, That the
unexpended balance of the sum of five thou-
sand dollars appropriated by the act of Congress
aforesaid, for the purchase of books and maps for
the use of the two Houses of Congress, together
with such sums as may hereafter be appropriated
to the same purpose, shall be laid out under the
direction of a joint committee, to consist of three
members of the Senate and three members of the
House of Representatatives.
Approved, January 26, 1802.
1303
APPENDIX.
1304
Acts of Congress.
An Act for the protection of the Commerce and Sea-
men of the United States, agaii^t the Tripolitan
Cruisers.
Whereas the Regedcy of Tripoli, oo the coast
of Barbary, has commenced a predatory warfare
against the United States:
Be it enactedj ^c, Thai it shall be lawful fully
to equip, officer, man, and employ such of the
armed vessels of the United States, as may be
judged requisite by the President or the United
Statts, for protectmg effectually the commerce
and seamen thereof on the Atlantic Ocean, the
Mediterranean and adjoining seas.
Sec. 2. And be it further enc^ted^ That it shall
be lawful for the President of the United States
to instruct the commanders of the respective pub-
lic vesseb aforesaid, to subdue, seize, and make
prize of all vessels, goods, and effects, belonging to
the Bey of Tripoli, or to his subjects, and to brmg
or sena the same into port, to be proceeded against,
and distributed according to law ; and also to cause
to be done all such other acts of precaution or hos-
tility as the state of war will justify, and may, in
his opinion, require.
Sec. 3. And be it further enacted, That, on the
application of the owners of the private armed
vessels of the United States, the President of the
United States may ffrant to them special commis-
sions, in the form which he shall direct, under the
seal of the United States ; and such private armed
vessels, when so commissioned, shall have the
like authority for subduing, seizing, taking, and
bringing into port, any Tripolitan vessel, goods
*or effects, as the beforementioned public armed
vessels may by law have; and shall therein be
subject to the instructions which may be given
by the President of the United States tor the reg-
ulation of th^ir conduct ; and their commissions
shall be revocable at his pleasure : Provided^ That
before any comm ission shall be wanted as aforesaid,
the owner or owners of the vessel for which the same
may be requested, and the commander thereof,
for the time being,' shall give bond to the United
States, with at least two responsible sureties, not
interested in such vessel, in the penal sum of seven
thousand dollars ; or. if such vessel be provided
with more than one hundred and fifty men, in the
penal sum of fourteen thousand dollars, with
condition for observing the treaties and laws of
the United States, and the instructions which may
be given, as aforesaid; and also, for satisfying ail
damages and injuries which shall be done, con-
trary to the tenor thereof, by such commissioned
vessel ; and for delivering up the commission,
when revoked by the President of the United
States.
Sec. 4. And be it further enacted, That any
Tripolitan vessel, goods, or effects, which shall be
so captured and Drought into port by any private
armed vessel of the United States, duly commis-
sioned, as aforesaid, may be adjudged good prize,
and thereupon shall accrue to the owners, and of-
ficers, and men of the capturing vessel, and shall
be distributed according to the agreement which
shall have been made between them, or, in failure of
such agreement, according to the discretion of the
court having cognizance of the capture.
Sec. 5. And be it further enacted, That the
seamen may be engaged to serve in the Navy cf
the United States for a period not exceeding itro
years; but the President may discharge the same
sooner, if, in his judgment, their services may b€
dispensed with.
Approved, February 6, 1802.
An Act extending the privilege of firanking and re-
ceiving letters, free of postage, to any person admit-
tedy or to be admitted, to take a seat in. CongreM, ss
a delegate; and providing compensatioii for sQch
delegate.
Be it enacted, ^c. That any person admitt«M2,
or who may hereafter be admitted, to take a seat
in Congress, as a delegate^ shall enjoy the piivi-
lege of sending and receiving letters, free of post-
age, on the same terms, and under the same re>
strictions, as are provided for the members of the
Senate and of the House of Representatives of
the United States, by the act, entitled, ^*An act to
establish the Post Office of the United States f
and that every such delegate so admitted to a
seat, be, and is hereby, authorized to receive, free
of postage, under the said restrictions, any letters
directed to him, and which shall have arrived at
the seat of Government prior to the passage of
this act : and that every such delegate shall re-
ceive, for his travelling expenses and attendance
in Congress, the same compensation as is or tnay
be allowed, by law, to the members of the Senate
and House of Representatives of the United States,
to be certified and paid in the same manner.
Approved, February 18, 1802.
An Act making certain partial appropriatioiis lor the
year one thonsand eight hundred and two.
Be it enacted, ^c. That the sum of sixty thou-
sand dollars be, and the same hereby ]s,appropri'
ated towards defraying the expenses of the pay of
the Army, during the year one thousand eight
hundred and two.
Sec. 2. And be it further, enacted, That the
following sums be, and the same hereby are, ap-
propriated to the purpose herein recited, respect-
ively, that is to say : for the contingent expenses
of the Department of the Treasury, to make good
the deficiency of the former appropriations for the
same, the sum of sixteen hundred and thirteen dol-'
lars and fifty-seven cents.
For the printing of the public accounts, to make
good the deficiency of former appropriations for
the same, the sum of fourteen hundred dollars.
Towards the contins^nt expenses of the Depart-
ment of the Treasury, during theyear one thousand
eight hundred and two, the sum of one thousand
dollars.
Towards the contingent expenses of the House
of Representatives, during the year one thousand
eight Hundred and two, the sum of three thousand
dollars.
Sec 3. And be it further enacted. That the
accounting officers of the Treasury Department
1305
APPENDIX.
1306
Acts of Conffrest.
be, and they are herebv authorized, in the settle-
meDt of the accounts or the several officers herein-
after mentioned, to make the following allowances
for clerk hire, during thejrear one thousand eight
hundred and one, in addition to the allowances
now established by law; that is to say:
. To the Accountant of the Navy Department,
one thousand nine hundred dollars, and thirty-one
cents.
To the Purveyor of Public Supplies, seven hun-
dred dollars.
To the Superintendant of Stamps, three hundred
and seventy-seven dollars and seventy-eight cents.
To the Commissioner of Loans of Pennsylvania,
one thousand five hundred dollars.
Provided, however^ That the expense, thus al-
lowed, shall have been actually incurred : And
provided also^ That the whole amount paid to each
abovementioned officer, respectively, for his com-
peDsaiion, and that of his clerks and persons em-
ployed in his office, for the vear aforesaid, shall
not exceed the sums heretofore appropriated, by
law, to those objects, respectively, during the said
year.
Sec. 4. And he it fiaiher enacted. That the
aforesaid sums shall m paid and discnarged out
of any moneys in the Treasury of the United States,
not otherwise appropriated.
Approved, February 23, 1802.
An Act to repeal certain acts respecting the organiza-
tion of the Courts of the United States ; and for
other purposes.
Be it enacted, ^c, That the act of Congress
passed on the tnirteenth day of February, one
thousand eight hundred and one, entitled *' An act
to provide for the more convenient organization
of the courts of the United States," from and after
tbe first day of July next, shall be, and is hereby,
repealed.
Sfic. 2. 4n^ ^ ^ further enacted^ That the act
passed on the third day of March one thousand
ei^ht hundred and one, entitled "An ^ct for alter-
ing the times and places of holding certain courts
therein mentioned and for other nurposes ;" from
and after the said first day of July next, shall be,
and is hereby, repealed.
Sec. 3. And be it further enacted^ That all the
acts, and parts of acts, which were m force before
the passage of the aforesaid two acts, and which
by the same were either amended, explained,
altered, or repealed, shall be, and hereby are, after
the said first day of July next, revived, and in as
full and complete force and operation, as if the
said two acts had never been made.
Sec. 4. And be it further enacted. That all
actions, suits, process, pleadings, and other pro-
ceedings, of what nature or kind soever, depend-
ing or existing in any of the circuit courts of the
United States, or in any of the district courts of
the United States, acting as circuit courts, or in
any of the additional district courts, which were
established by the aforesaid act of Congress, passed
on the thirteenth day of February, one thousand
eight hundred and one, shall be, and hereby aiei^
from and after the said first day of July next, con-
tinued over to the circuit courts, and to the dis-
trict courts, and to the district courts acting as
circuit courts, respectively, which shall be first
thereafter holden in, and for the respective cir-
cuits and districts, which are revived and estab-
lished by this act, and to be proceeded in, in the
same manner as they would have been had they
originated prior to the passage of the said act,
passed on the thirteenth day of February, one
thousand eight hundred and one.
Sec. 5. And be it further enacted^ That all
writs and process, which have issaed, or may is-
sue before the said first day of July next, return-
able to the circuit courts, or to any district court
acting as a circuit court, or any additioaai district
court established by the aforesaid act passed the
thirteenth day of February, one thousand eight
hundred and one, shall be returned to the next
circuit court, or district court, or district court
acting as a circuit court, re-established by this act ;
and shall be proceeded on. therein, in the same
manner, as they could, had they been originally
returnable to the circuit courts, and district courts
acting as circuit courts, hereby revived and estab-
lished.
Approved, March 8, 1802.
An Act fixing the Military Peace Establishment of the
United States.
Be it enacted^ f c, That the Military Peace Els-
tablishment of the United Stp.tes, from and after
the first of June next, shall Decomposed of one
regiment of artillerists and tvA regiments of in-
fantry, with such officers, mjltary agents, i^nd
engineers, as are hereinafter ipTn tinned.
Sbc. 2. And be itfurtheptgnacted, That the re-
giment of artillerists shall consist of one colonel,
one Jieutenant colonel, four majors, one adjutant,
and twenty companies; each company to consist
of one captain, one first lieutenant, one second
lieutenant, two cadets, four sergeants, four corpo-
rals, four musicians, eight artificers, and fifty-six
privates; to be formed into five battalions: FrO'
vided aiways. That it shall be lawful for. the Presi-
dent of the United States to reUin, with their
present grade, as many of the first lieutenants,
now in service, as shall amount to the whole
number of lieutenants required; but that in po-
portion as vacancies happen therein, new appomt-
ments be made to the grade of second lieutenants,
until their number amount to twenty ; and each
regiment of infantry shall consist of one colonel,
one lieutenant colonel, odc major, one adjutant
one sergeant major, two teachers of music, and
ten companies; each company to consist of one
captain, one first and one second lieutenant, one
ensign, four sergeants, four corporals, four musi-
cians, and sixty-four privates.
Sbc. 3. And be it further enacted, That there
shall be one brigadier general, with one aid-de-
camp, who shall be taken from the* captains or
subalterns of the line ; one adjutant and inspector
of the army, to be taken from the line of field of-
ficers; one paymaster of the army, seven pay-
1307
APPENDIX.
1308
Acts of Congress,
«
masters, and two assistants, to be attached to such
districts as the President of the United States
shall direct, to be taken from the line of commis-
sioned officers, who, in addition to their other
duties, shall have charge of the clothing of the
troops ; three military agents, and such number
of assistant military agents as the President of the
United States shall deem expedient, not exceed-
ing one to each military^ post ; which assistants
shallbetaken from the line; two surgeons; twenty-
fiye surgeon''s mates, to be attached to garrisons
or posts ) and not to corps.
Sec. 4. And be iZ further enacted. That the
monthly pay of the officers, non-commissioned offi-
cers, musicians, and privates, be as follows, to wit:
to the brigadier general, two hundred and twenty-
five dollars, which shall be his full and entire com-
pensation, without a right to demand or receive
any rations, forage, travelling expenses, or other
penjuisites or emoluments whatsoever, except such
stationery as may be requisite for the use of his
department; to tne adjutant and inspector of the
army, thirty-eight dollars in addition to his pay in
the fine, and such stationery as shall be requisite
for his department ; to the paymaster of the army,
one hundred and twenty dollars, without any other
emolument, except such stationery as may be re-
quisite in his department and the use of the public
office now occupied by him; to the aid-de-camp,
in addition. to his pay in the line, thirty dollars;
to each paymaster attached to districts, thirty dol-
lars, and each assistant to such paymaster, ten dol-
lars, in addition to his pay in the line ; to each mil-
itary agent, seventy-six a oUars, and no other emol-
ument; to each assistant military a^ent, eight
dollars, in addition to his pay in tne line, except
the assistant military agents at Pittsburg and Ni-
agara, who shall receive sixteen dollars, each, in
addition to their pay in the line ; to each colonel,
seventy-five dollars; to each lieutenant colonel,
sixty dollars ; to each major, fifty dollars ; to each
surgeon, forty-five dollars; to each surgeon's mate,
thirty dollars ; to each adjutant, ten dollars, in ad-
dition to his pay in the line ; to each captain, forty
dollars ; to each first lieutenant, thirty dollars ; to
each second lieutenant, twenty-five dollars; to
each ensign, twenty dollars ; to each cadet, ten
dollars ; to each sergeant major, nine dollars ; to
each sergeant, eight dollars; to each corporal, seven
dollars ; to each teacher of music, eight dollars ;
to each musician, six dollars ; to each artificer, ten
dollars ; and to each private, five dollars.
Sec. 5. And be it further enacted, That the
commissioned officers aforesaid, shall be entitled
to receive, for their daily subsistence, the following
number of rations of provisions : a colonel, six ra-
tions ; a lieutenant colonel, five rations ; a major,
four rations ; a captain, three rations ; a lieutenant,
two rations ; an ensign, two rations ; a surgeon,
three rations ; a surgeon's mate, two rations ; a
cadet* two rations or money in lieu thereof, at the
option of the^said officers and cadets at the posts,
respectively, 'where the rations shall become due;
ana if at such posts supplies are not furnished by
contract, then such allowance as shall be deemed
equitable, having reference to former contracts,
and the position of the place in question : and etch
non-commissioned officer, musician, and private,
one ration ; to the commanding officers of each
separate post, such additional number of rations
as the President of the United States shall, from
time to time, direct, having respect to the special
circumstances of each post; to the vromen wha
may be allowed tp any particular corps, not ex-
ceeding the proportion or four to a company, one
ration each ; to such matrons and nurses as may
be necessarily employed in the hospital, one ration
each ; and to every commissioned officer who shail
keep one servant, not a soldier of the line, one ad-
ditional ration.
Sec. 6. And be it further enacted. That each
ration shall consist of one pound and a quarter ol
beef, or three quarters of a pound of pork, eighxetu.
ounces of bread or flour, one eill of rum, whiskey,
or brandy, and at the rate of two quarts of salt.
four quarts of vinegar, four pounds of soap, aad
one pound and a half of candles, to every hundred
rations.
Sec. 7. And be it further enacted^ That the fol-
lowing officers shall, whenever forage is not for-
nished by the public, receive at the rate of the fol-
lowing sums per month, in lieu thereof: eack
colonel, twelve dollars ; each lieutenant colonel
eleven dollars ; each major, ten dollars ; each ad-
jutant, six dollars; each surgeon, ten dollars ; and
each surgeon's mate, six dollars.
Sec. 8. And be it further enacted^ Tha't every
non-commissioned officer, musician, and private, oi
the artillery and infantry, shall receive annually
the following articles ot uniform clothing, to wit:
one hat, one coat, one vest, two pair of woollen and
two pair of linen overalls, one coarse linen frock
and trowsers for fatigue clothing, four pair of
shoes, four shirts, two pair of socks, two pair of
short stockings, one blanket, one stock and clasp
and one pair of half gaiters: and the Secretary of
War is hereby authorized to cause to be furnished,
to the paymasters of the respective disiricts, such
surplus of clothing as he may deem expedient;
which clothing shall, under his direction, be fur-
nished to the soldiers, when necessary, at the con-
tract prices, and^ccounted for by them out of their
arrears of monthly pay.
Sec. 9. And be it further enacted. That the
President of the United States cause to be arranged
the officers, non-commissioned officers, musicians,
and privates of the several corps of troops now in
the service of the United States, in such manner
as to form and complete, out of the same, the corps
aforesaid; and cause the supernumerary officers,
non-commissioned officers, musicians, and privates,
to be discharged from the service of the United
States, from and after the first day of April next or
as soon thereafter as circumstances may permit
Sec 10. And be it further enacted. That the
officers, non-commissioned officers, musicians, and
privates, of the said corps, shall be governed by the
rules and articles of war, which have been estab-
lished by the United States in Congress assembled
or by such rules and articles as may be hereafter,
by law, established : Provided, neveriheles*, That
the sentence of general courts martial, exteodini
1309
APPENDIX.
1310
Acts qf Congreas.
to the loss of life, the dismission of a commissioDed
officer, or which shall respect the general officer,
shall, with the whole of the proceedings of such
cases, respectively, be laid before the President of
the United States, who is hereby authorized to di-
rect the same to be carried into execution, or other*
wise, as he shall jud^e proper.
Sec. 11. And be it further enacted^ That the
commissioned officers who shall be employed in
the recruiting service, to keep up, by voluntary en-
listment, the corps as aforesaio. shall be entitled
to receive for every effective anle-bodied citizen
of the United States, who shall be duly enlisted
by him for the term of ^ve years, and mustered,
of at least five feet six inches high, and between
the ages of eighteen and thirty-five years, the sum
of two dollars: Provided, neverthdesf. That this
regulation, so far as respects the heignt and age
of the recruit, shall not extend to musicians or to
those soldiers who may re-enlist into the service :
Andprovidedj also^ That no person under the age
of twenty-one years shall be enlisted by any offi-
cer, or held in the service of the United States,
without the consent of his parent, guardian, or
master, first had and obtained, if any he have ; and
if any officer shall enlbt anv person contrary to the
true intent and meaning ot this act, for every such
offence he shall forfeit and pay the amount of the
bounty and clothing which the person so recruited
may have received from the public, to be deducted
out of the pay and emoluments of such officer.
Sec. 12. Arid he it further enacted^ That there
shall be allowed and paid to each effective able-
bodied citizen, recruited as aforesaid, to serve for
the term of five years, a bounty of twelve dollars ;
but the payment of six dollars of the said bounty
shall be deferred until he shall be mustered and
have joined the corps in which he is to serve.
Sec. 13. And he it further enacted^ That the
said corps shall be paid in such manner, that the
arrears shall, at no time, exceed two months, un-
less the circumstances of the case shall render it
unavoidable.
Sbc* 14. And he it further enacted, That if any
officer non-commissioned officer, musician, or pri-
vate, in the corps composing the peace establish-
ment, shall be disabled by wounos or otherwise,
while in the line of his duty in public service, he
shall be placed on the list or invalids of the
United States, at such rate of pay, and under such
regulations, as may be directed by the President
of the United States for the time being : Provided,
alwapSj That the compensation to be allowed for
suchp wounds or disabilities, to a commissioned
officer, shall not exceed for the highest rate of
disability half the monthly pay of such officer, at
the time of his being disabled or wounded ; and
that no officer shall receive more than the half
pay of a lieutenant colonel ; and that the rate of
compensation to non-commissioned officers, mu-
sicians, and privates, shall not exceed five dollars
per month : And provided also. That all inferior
disabilities shall entitle the person so disabled to
receive an allowance proportionate to the highest
disability.
Sec. 15. Andhe it further enactedf That if any
commissioned officer in the military peace estab-
lishment of the United States, shall, while in the
service of the United States, die, by reason of any
wound received in actual service of the United
States, and leave a widow, or, if no widow, a child
or children under sixteen years of age, such widow
or, if no widow, such child or children shall be en-
titled to and receive half the monthly pay, to which
the deceased was entitled at the time ot his death,
for and during the term of five years. But in case
of the death or intermarriage of such widow, be-
for the expiration of the said term of five years.*
the half pay. for the remainder of the time, shall
go to the child or children of such deceased officer :
Phmdedj always^ That such half pay shall cease
on the decease of such child or children.
Sec. 16. And he it further enacted. That the
paymaster shall perform the duties or his office,
agreeably to the direction of the President of the
United States, for the time being ; and before he
enters on the duties of the same, shall give bonds,
with good and sufficient sureties, in such sums as
the President shall direct, for the faithful discharge
of his said office, and shall take an oath to execute
the duties thereof with fidelity : and it shall more-
over, be his duty to appoint from the line, with the
approbation of the President of the United States,
the several paymasters to districts, and assistants,
prescribed by this act ; and he is hereby authorized
to require the said paymasters to districts, and as-
sistants, to enter into bond, with good and sufficient
surety, for the faithful discharge of their respective
duties. .
Sec 17. And be it further enacted. That it
shall be the duty of the military agents, designated
by this act, to purchase, receive, and forward to
their proper destination, all military stores, and
other articles, for the troops in their respective de-
partments, and all goods and annuities for the In- ^
dians. which they may be directed to purchase, or
which shall be ordered into their care by the De*
partment of War. They sh|ll account with the
Department of War, annually, for all the public
property which may pass through their hands, and
all the moneys which they may expend in dis-
charge of the duties of their offices, respectively:
previous to their entering on the duties of their
offices, they shall give bonds, with sufficient sure-
ties, in sucn sums as the President of the United
States shall direct, for the faithful discharge of
the trust reposed in them, and shall take an oath
faithfully to perform the duties of their respective
offices.
Sec 18. And be it Jurther enacted, That if any
non-commissioned officer, musician, or private,
shall desert the service of the United States, he
shall, in addition to the penalties mentioned in the
rules and articles of war, be liable to serve, for
and during such a period as shall, with the time
he may have served previous to his desertion,
amount to the full term of his enlistment ; and
such soldier shall and may be tried by a court
martial, and punished, although the term of his en-
listment may have elapsed previous to his being
apprehended or tried.
Sec 19. And be it further enacted, That every
1311
APPENDIX.
1312
Acts of CongTCM,
person who shall procure or entice a soldier in the
service of the United States to desert, or who shall
purchase from any soldier his arms, uniform clo-
thing, or any part thereof; and every captain or
commanding officer of any ship or vessel, who
shall enter on board such ship or vessel, as one of
his crew, knowing him to have deserted, or other-
wise carry away any such soldier, or shall refuse
to deliver him up to the orders of his commanding
officer, shall, upon legal conviction, be fined at the
discretion of any court having cognizance of the
Bame, in any sum not exceeding three hundred
dollars, or be imprisoned any term not exceeding
one year.
' Sec. 20. And be itjurther enacted. That evefy
officer, non-commissioned officer, musician and pri-
vate, shall take and subscribe the following oath
or affirmation, to wit: "I, A. B., do solemnly
swear, or affirm, (as the case may be,) that I will
bear true faith and allegiance to the United States
of America, and that I will serve them honestly
and faithfully against their enemies or opposers,
whomsoever ; and that I will observe and obey
the orders of the President of the United States,
and the orders of the officers appointed over me,
according to the rules and articles of war."
Sec. 31. And be it further enacted^ That when-
ever a general court martial shall be ordered, the
President of the United States may appoint some
fit person to act as judge advocate, who shall be
allowed, in addition to his other pay, one dollar
and twenty-five cents for every day he shall be ne-
cessarily ^employed in the duties of the said court ;
and in cases where the Presid^it shall not have
made such appointment, the brigadier general or
the president of the court may make the same.
Sec. 22. And be it further enacted. That where
any commissioned officer shall be obliged to incur
^any extra expense in travelling and sitting on
general courts martial, he shall be allowed a rea-
sonable compensation for such extra expense ac-
tually incurred, nojt exceeding one dollar and
twenty-five cents per day, to officers who are not
entitled to forage, and not exceeding one dollar
per day to such as shall be entitled to foraee.
Sec. 23. And be it further enacted, That no
noa-commissioned officer, musician or private shall
be arrested, or subject to arrest, or to oe taken in
execution tor any debt under the sum of twenty
dollars, contracted before enlistment, nor for any
debt contracted after enlistment.
Sec 24. And be it further enacted, That when-
ever any officer or soldier shall be discharged from
the service, except by way of punishment for any
offence, he shall be allowed his pay and rations,
or an equivalent in money, for such term of time
as shall be sufficient for him to travel from the
place of discharge to the place of his residence,
computing at the rate of twenty miles to a day.
Sec. 25. And be it further enacted^ That to
eacb commissioned officer, who shall be deranged
by virtue of this act, there shall be allowed and
paid, in addition to the pay and emoluments
to which they will be entitled by law at the time
of their discharge — to each officer whose term of
service in any miHtary corps of the United States
shall not have exceeded three years, three months'
pay; to all other officers, so deran^^ed, one month^s
pay of their grades, respectively, ror each year of
past service in the army of the United States, or
in any regiment or corps now or formerly in the
service thereof.
Sec. 26. And be it further enacted, That the
President of the United States is hereby author-
ized and empowered, when he shall deeoi it ex-
pedient, to organize and establish a corps of en-
gineers, to consist of one engineer, with the paf.
rank, and emoluments of a major ; two assistant
engineers, with the pay, rank, and emolaments of
captains ; two other assistant enjnneers, with the
pay, rank, and emoluments of first lieutenants ,*
two other assistant engineers^ with the pay, rank,
and emoluments of second lieutenants ; and ten
cadets, with the pay of sixteen dollars per month,
and two rations per day; and the President of the
United States is, in like manner, authorized, when
he shall deem it proper, to make such promotions
in the said corps, with a view to particular merit,
and without regard to rank, so as not to exceed
one colonel, one lieutenant colonel, two majors,
four captains, four first lieutenants, foor second
lieutenants, and so as that the number of the whole
corps shall, at no time, exceed twenty officers and
cadets.
Sec 27. And be it further enacted, That the
said corps when so organized, shall be stationed
at West Point, in the State of New York, and shall
constitute a military academy ; and the engineers,
assistant engineers, and cadets of the said corps,
shall be subject, at all times, to do duty in sueli
places, and on such service, as the President of
the United States shall direct.
Sec. 28. And be it further enacted^ That the
principal engineer, and in his absence the next in
rank, shall have the superintendence of the said
military academy, under the direction of the Presi-
dent ot the United States; and the Secretary of
War is hereby authorized, at the pitblic expense.
under such regulations as shall be directed by the
President of the United States, to procure the ne-
cessary books, implements, and apparatus, for the
use and benefit of the said institution.
Sec 29. And be it further enacted^ That so
much of any act or acts, now in force, as comes
within the purview of this act, shall be, and the
same is hereby, repealed ; saving, nerertheless,
such parts thereof as relate to the enlistnienu or
term or service of any of the troops, which, by this
act, are continued on the present military establish-
ment of the United States.
Approved, March 16, 1802.
An Act for the accommodation of persons eoncerbcd
in certain fisheries therein mentioned.
Be it enacted, ^c. That, from and after the
fwssing of this act, it shall be lawful for the col-
ector of the customs for the district of Edenton,
to permit any vessel having on board salt only,
after due report and entry, and security given for
the duties, to proceed, under the inspection of aa
officer of the customs^ to any fishery, or other land-
1313
APPENDIX.
1314
Acta of Congress,
iDg place within the district, (to be designated in
the permit.) and there discharge the same; sub-
ject, however, in all other respects, to the regula-
tions, penalties, and provisions established by an
act passed the second of March, in the year one
thousand seven hundred and ninety-nine, entitled
^'An act to regulate the collection of duties on
imports and tonnas^e."
Sec. 2. And he \t further enacted^ That every
inspector, or other officer of the customs, while
performing duty on board any such vessel, else-
where than in the port to which such officer may
properly belong, shall be entitled to receive from
the master, or commander thereof, such provisions
and other accommodations, (free from expense,)
as are usually supplied to passengers, or as the
state and condition of the vessel will admit.
Sec. 3. And he it further enacted^ That if, by
reason of the delivery of any cargo of salt, in
manner aforesaid, more than fifteen working days,
(computing from the date of entry.) shall, in the
whole, be spent therein, the wages or compensa-
tion of such inspector, or other officer of the cus-
toms, who may be employed on board any ves-
sel, in respect to which such term may be so ex-
ceeded, shall, for every day of such excess, be paid
by the master or owner; and ivitil paid, it shall
not be lawful for the collector to grant a clear-
ance, or to permit such vessel to depart from the
district.
Approved, March 16, 1802.
An Act to amend an act, entitled "An act to lay and
collect a direct tax within the United States.
Be it enacted^ ^c. That the collectors in each
district shall prepare and transmit to their re-
spective supervisors, correct lists of all lands with-
in their respective collection districts, which by
the act passed the fourteenth day of July, one
thousand seven hundred and ninety-eight, entitled
''An act to lay and collect a direct tax within the
United States," they now are or hereafter shall be
authorized to advertise for sale, specifying therein
the persons in whose names the assessments were
origmally made, and the sums due thereon re-
spectively; of which lists it shall be the duty of
the supervisor, in all cases, to cause correct tran-
scripts to be made out, and to cause to be inserted
for dve weeks jfuccessively, in one or more news-
papers published within his district, one of which
shall be the gazette in which are published, by
authority, the laws of the State within whose
limits the said district may be comprised, if there
be any such gazette, a notification, that sucH tran-
scripts are lodged at his office, and are open to
the free inspection of all parties concerned; and
stlso notifying, that the tax due upon the said lands
may be paid to the collector wirhin whose divis-
ion the aforesaid lands are contained, or to the
supervisor of the di:itrict, at any time within the
space of six months from the date of such notifi-
cation, and the time when, and places where sales
inrill be made of all lands upon which any part of
the direct tax shall remain due ^after the expira-
tion of the time aforesaid.
7th Con.
Sec. 2. And be it further enacted, That in case
of failure on the part of the owner or owners of
the aforesaid lands to pay within the aforesaid
time the full amount of tax due thereon, the col-
lectors, under the direction, and with the appro-
bation of their respective supervisors, shall im-
inediately proceed to sell, at public sale, at the
times and places mentioned in the advertisement
of the supervisor, so much of the lands aforesaid
as may be sufficient to satisfy the same, together
with all the costs and charges of preparing lists,
advertising, and notifying, as aforesaid, and of the
sale.
Sec. 3. And be it further enacted. That the afore-
said tax, includinfir all costs and charges as afore-
said, shall be and remain a lien upon all lands
and other real estate on which the same has been
assessed, until the tax due upon, the same, inclu-
ding all costs and charges, shall have been col-
lected, or until a sale shall have been effected, ac-
cording to the provision of this act, or of the act
to which this is a supplement.
Sec. 4. And be it further enacted. That in all
cases wherein any tract of land may have been
assessed in one assessment, which at the time
when such assessment was made, was actually
divided into two or more distinct parcels, eacn
parcel having one or more distinct proprietor or
proprietors, it shall be the duty of the collector to
receive in manner srforesaid, from any proprietor
or proprietors thus situated, his or tneir propor-
tion or the tax due upon such tract; and there-
upon, the land of the proprietor or proprietors,
upon which the tax shall have been thus paid,
shall be forever discharged from any part ot the
tax due under the original assessment.
Sec. 5. And he it further enacted^ That in any
case in which it may have happened that lands
actually belonginsf to one person, may have been,
or hereafter shall be, assessed in the name 'of
another, and no sale of the same shall yet have
been made, the same proceedings shall be had for
the sale of the afore:<aid lands, in order to raise
the tax assessed in relation to the same, as is pro-
vided by the eleventh section of the act to which
this is a supplement, in the case of lands assessed,
the owner whereof is unknown; and such sale
shall transfer and pass to the purchaser a good
and effectual title. ^
Sec. 6. And be it further enacted. That the
right of redemption reserved to the owners of
lands and tenements sold under this act, or the act
to which this is a supplement, shall in no wise be
affected or impaired: Provided always, That the
owners of lands which shall thus be sold after the
passing of this act. in order to avail themselves of
that right, shall rnake payment or tender of pay-
ment within two years from the time of sale, for
the use of the purchaser, his heirs or assigns, of
the amount of the said tax, costs, and charges,
with interest for the same, at the rate of twenty-
five per cent, per annum.
Sec. 7. And be it furthen enacted, That the
Secretary of the Treasury shall be, and hereby
is, authorized and empowered, under the direction
of the President of the United States, to augment
1315
APPENDIX.
1316
Acts of Congress.
the compensation fixed bv law for the Commis-
sioner or for the principal and assistant assessors.
or either of them, in any division where it shall
be found necessary for carrying into effect the act
entitled, ''An act to provide for the valuation of
lands and dwelling-houses, and the enumeration
of slaves withm the United States/' so, however,
9ts that the Commissioner shall in no case receive
more than five dolfars per day, nor the principal
or assistant assessor in any case receive more
than three dollars per day, which additional com-
pensation shall be subject to the same rules of
settlement as are established by the act last afore-
said.
Approved, March 16, 1802.
An Act to regulate trade and intercourse with the
Indian tribes, and to preserve peace on Uie frontiers.
Be it enacted, ^c, That the following bound-
ary line, established by treaty between the Uni-
ted States and various Indian tribes, shall be
clearly ascertained, and distinctly marked in all
such places as the President of the United States
shall deem necessary, and in such manner as he shall
direct, to wit: Beginning at the mouth of the Cay-
aboga river on Lake Erie, and running thence up
the same to the portage between that and the
Tuscaroras branch of the Muskingum; thence,
down that branch, to the crossing place above
Fort Lawrence; thence we^wardly to a fork of
• that branch of the Great Miami river running
into the Ohio, at or near which fork stood Laro-
mie's store, and where commences the portage,
between the Miami of the Ohio and St. Mary's
river, which is a branch of the Miami, which
runs into Lake Erie; thence a westwardly course
to Fort Recovery, which stands on a branch of
the Wabash; thence southwestwardiy,in a direct
line to the Ohio, so as to intersect that river, op-
posite the mouth of Kentucky or Cuttawa river ;
thence down the said river Ohio to the tract of
one hundred and fifty thousand acres, near the
rapids of the Ohio, which has been assigned to
General Clarke, for the use of himself and his
warriors; thence around the said tract, on the
line of the said tract, till it shall again intersect
the said river Ohio ; thence down the same to a
point opposite the high lands or ridge between
the mouth of the Cumberland and Tennessee
rivers ; thence southeastwardly on the said ridge,
to a point, from whence a southwest line will
strike the mouth of Duck river; thence, still east-
wardly on the said ridge, to a point forty miles
above Nashville; thence northeast to Cumnerland
river; thence up the said river to where the Ken-
tucky road crosses the same ; thence to the Cum-
berland mountain, at the point of Campbell's line;
thence in a south west wardly direction along the
foot of the Cumberland mountain to Emory's
river; thence down the same to its junction with
the river Clinch; thence down the river Clinch
to Hawkins's line; thence along the same to a
white oak, marked ^one mile tree; thence south
fifty-one degrees west, three hundred and twenty-
eight chains, to a large ash tree on the bank of
the river Tennessee, one mile below Southwest
Point; thence up the northeast margin of the
river Tennessee, fnot including islands,) to the
Wild Cat Rock, below Tellico block-house; theoce
in a direct line to the Militia Spring, near the
Mary vi lie road leading from Tellico; thence from
the said spring to the Chilhowee mountain, by a
line so to be run as will leave all the farms on
Nine-mile creek to the northward and eastward
of it, and to be continued along the Chilhowee
mountain until it strikes Hawkins's line; thence
alons the said line to the great Iron mountain;
and from the top of which a line to be continued
in a southeastwardly course to where the most
southern branch of Little river crosses the divis-
ional line to Tugaloo river; thence along the
South Carolina Indian boundary to and over the
Ocunna mountain, in a southwest course to Tug*'
aloo river; thence in a direct line to the top of
Currahee mountain, where the Creek line passes
it; thence to the head or source of the main south
branch of the Oconee river, called ihe Appa-
lachee; thence down the middle of the said main
south branch and river Oconee, to its confluence
with Oakmulgee, which forms the river Altama-
ha ; thence down the middle of the said Altama-
ha, to the old line on the said river; and thence
along the said old line to the river St. Mary's:
Provided always^ That if the boundary line be-
tween the said Indian tribes and the United States
shall, at any time hereafter, be varied, bjr any
treaty which shall be made oetween the said In-
dian tribes and the United States, then all the
provisions contained in this act shall be construed
to apply to the said line so to be varied, in the
same manner, as said provisions apply, by force
of this act, to the boundary line hereinbefore
recited.
Sec. 2. And be it further encLcted, That if any
citizen of, or other person resident in, the United
States, or either of the territorial districts of the
United States, shall cross over, or go within the
said boundary line, to hunt, or in any wise destroy
the game; or shall drive, or otherwise convey any
stock of horses or cattle to range on any lands al-
lotted or secured by treaty with the United Slater
to any Indian tribes, he shall forfeit a sum na
exceeding one hundred dollars, or be imprisoned
not exceeding six months.
Sec. 3. And be it further enacted. That if any
such citizen, or other person, shall go into an;
country which is allotted, or secured by treaty as
aforesaid, to any of the Indian tribes south of th<
river Ohio, without a passport first had and cb>
tained from the Governor of some one of the Uni-
ted States, or the officer of the troops of the Uni:t>i
States, commanding at the nearest post on the
frontiers, or such other person as the President J
the United States may, from time to time, au-
thorize to grant the same, shall forfeit a sum not
exceeding fifty dollars, or be imprisoned not ex-
ceeding three inonth^.
Sec. 4. And be it further enacted^ That if anj
such citizen, or other person, shall go into aof
town, settlement, or territory, belonging, or se
cured by treaty with the United States, to znj
nation or tribe of Indians, and shall there comoiit
1317
APPENDIX.
1818
Acts of Congress.
robbery, larceny, trespass, or any other crime,
against the person or property of any friendly In-
dian or Inaiansj which would be punishable, if
committed within the jurisdiction of any State,
against a citizen of the United States; or, unau-
thorized by law, and with a hostile intention, shall
be found on any Indian land, such offender shall
forfeit a sum not exceeding one hundred dollars,
and be* imprisQued not exceeding twelve months;
and shall also, when property is taken or destroyed,
forfeit and pay to such Indian or Indians, to whom
the property taken and destroyed belongs, a sum
equal to twice the just value of the property so
taken or destroyed ; and if such offenaer shall be
unable to pay a sum at least equal to the said just
value, whatever such payment shall fall short of
the said just value, shall oe paid out of the Trea-
sury of the United States: Provided, nevertheless.
That no such Indian shall be entitled to any pay-
ment out of the Treasury of the United States,
for any such property taken or destroyed, if he,
or any of the nation to which he belongs, shall
have soujjfht private revenge, or attempted to ob-
tain satislaction by any force or violence.
Sec. 5. And be it further emicted^ That if any
such citizen, or other person, shall make a settle-
ment on any lands belonging or secured, or granted
by treaty with the United States, to any Indian
tribe, or shall survey, or attempt to survey, such
lands, or designate any of the boundaries, by mark-
log trees, or otherwise, such offender shall forfeit
a sum not exceeding one thousand dollars, and
suffer imprisonment not exceeding twelve months.
And it shall, moreover, be lawful for the President
of the United States to take such measures, and to
employ such military force, as he may judge ne-
cessary, to remove from lands, belongmg or se-
cured by treaty, as aforesaid, to any Indian tribe,
any such citizeo, or other person, who has made,
or shall hereafter make, or attempt to make a
settlement thereon.
Sec. 6. And be it further enacted. That if any
such citizen, or other person, shall^o into any
town, settlement, or territory, belonging to any
nation or tribe of Indians, ana shall there commit
murder, by killing any Indian or Indians, belong-
ing to any nation or tribe of Indians in amity
with the United States, such offender, on being
thereof convicted, shall suffer death.
Sec. 7. And be it further encictedj That no such
citizen, or other person, shall be permitted to re-
side at any of the towns, or hunting camps, of any
of the Indian tribes as a trader, without a license,
under the hand and seal of the superintendent of
the department, or of such other person as the
President of the United States shall authorize to
jgrant licenses for that purpose ; which superin-
tendent, or person authorized, shall, on applica-
tion, issue such license, for a term not exceeding,
ti^o years, to such trader, who shall enter into
bond with one or more sureties, approved of by
the superintendent, or person issuing such license,
or by the President of the United States, in the
penal sum of one thousand dollars, conditioned
for the true and faithful observance of such regu-
lations and restrictions as are, or shall be made
for the government of trade and intercourse with
the Indian tribes ; and the superintendent, or per-
son issuing such license, shall have full power and
authority to recall the same, if the person so li-
censed pball transgress any of the regulations, or
restriction^, provided for the government of trade
and intercourse with the Indian tribes; and shall
put in suit such bonds as he may have taken on
the breach of any condition therein contained.
Sec. 8. And be it further enacted, That any
such citizen or other person, who shall attempt to
reside in any town or hunting camp, of any of
the Indian tribes, as a trader, without such license,
shall forfeit all tne merchandise offered for sale to
the Indians, or found in his possession, and shall,
moreover, be liable to a fine not exceeding one
hundred dollars, and to imprisonment not exceed-
ing thirty days.
Sec. 9. And be it further enacted^ That if any
such citizen, or other person, shall purchase, or
receive of any Indian, in the way of trade or
barter, a gun, or other article commonly used in
hunting, any instrument of husbandry, or cooking
utensil, of the kind usually obtainea by the In-
dians, in their intercourse with white people, or
any article of clothing, excepting skins or furs, he
shall forfeit a sum not exceeding fifty dollars, and
be imprisoned not exceeding thirty aays.
Sec. 10. And be it fur^er enactea^ That no
such citizen, or other person, shall be permitted to
purchase any horse ot an Indian, or of any white
man in the Indian territory, without special license
for that purpose; which license, the superintend-
ent, or such other person as the President shall
appoint, is hereby authorized to grant, on the
same terms, conditions, and restrictions, as other
licenses are to be granted under this act: and any
such person, who shall purchase a horse or horses,
under such license, before he exposes such horse
or horses for sale, and within fifteen days after
they have been brought out of the Indian country,
shall make a particular return to the superintend-
ent, or other person, from whom he obtained his
license, of every horse purchased by him as afore-
said ; describing such horses by tbeir color, height,
and other natural or artificial marks, under the
penalty contained in their respective bonds; and
every' such person purchasing a horse or horses,
as aforesaid, in the Indian country, without a spe-
cial license, shall, folr every horse thus purchased
and brought into any settlement of citizens of the
United States, forfeit a suni not exceeding one
hundred dollars, and be imprisoned not exceeding
thirty days; and every person who shall purchase
a horse, knowing him to be brought out of the
Indian territory, by any person or persons, not
licensed, as above, to purchase the same, shall for-
feit the value of such horse.
Sec U. And be it further enacted, That no
agent, superintendent, or other person authorized
to grant a license lo trade, or purchase horses,
shall have any interest or concern in any trade
with the Indians, or in ^e purchase or sale of any
horse to or from an^^ Indian, excepting for and
on account of the United States: and any persoii
offending herein shall forfeit a sum not exceeding
1319
APPENDIX.
1320
Ads of Congress.
one thousand dollars, and be imprisoned not ex-
ceeding twelve months.
Sec. 12. And be it further enacted^ That no
purchase, grant, lease, or other conveyance of
lands, or of any title or claim thereto, from any
Indian, or nation, or tribe of Indians, nvithin the
bounds of the United States, shall be of any valid-
ity, in law or equity, unless the same be made by
treaty or convention, entered into pursuant to the
Constitution : and it shall be a misdemeanor in
any person, not employed under the authority of
the United States, to negotiate such treaty or con-
vention, directly or indirectly, to treat with any
such Indian nation, or tribe oi Indians, for the title
or purchase of any lands by them held or claimed,
Sunishable by fine not exceeding one thousand
ollars, and imprisonment not exceeding twelve
months : Provided, nevertheless, That it shall be
lawful for the agent or agents of any State, who
may be present at any treaty held with Indians
unaer the authority of the United States, in the
presence and with the approbation of the Com-
missioner or Commissioners, appointed to hold
the same, to propose to, and adjust with the In-
dians, the compensation to be made for their
claims to lands within such State, which shall be
extinguished by the treaty.
Sec. 13. And be it further enacted, That in
order to promote civilization among the friendly
Indian tribes, and to secure the continuance of
their friendship, it shall be lawful for the Presi
dent of the United States to jcause them to be
furnished with useful domestic animals, and im-
plements of husbandry, and with goods or money,
as he shall judge proper, and to appoint such per-
sons, from time to time, as temporary agents, to
reside amonz the Indians, as he shall think fit:
Provided, That the whole amount of such pres-
ents, and allowance to such agents, shall not ex-
ceed fifteen thousand dollars per annum.
^ Sec. 14. And be it further enacted, That if any
Indian or Indians, belonging to any tribe in amity
with the United States, shall come over or cross
the said boundary line, into any State or territory
inhabited by citizens of the United States, and
there take, steal, or destroy any horse, horses, or
other property, belonging to any citizen or inhab-
itant of the United States, or of either of the ter-
ritorial districts of the United States, or shall
commit any murder, violence, or outrage, upon
any such citizen or inhabitant, it shall be the duty
of such citizen or inhabitant, his representative,
attorney, or agent, to make application to the
superintendent, or such other person as the Presi-
dent of the United States shall authorize for that
purpose; who, upon being furnished with the
necessary documents and jproofs. shall, under the
direction or instruction or the President of the
United States, make application to the nation or
tribe, to which such Indian or Indians shall be-
long, for satisfaction; and if such nation or tribe
shall ncjzlect or refuse to make satisfaction, in a
reasonable time, not eiAeeding twelve months,
iheu it shall be the duty of Such superintendent or
other person authorized as aforesaid, to make re-
turn or his doings to the President of the United
States, and forward to him all the docaments and
proofs in the case, that such farther steps may be
taken as shall be proper to obtain satisfaction for
the injury : and, in the mean time, in respect to
the property so taken, stolen, or destroyed, the
United States guaranty to the party injured an
eventual indemnification : Provided always. That
if such injured party, his representative, attorney,
or agent, shall, in any way, violate any of the
provisions of this act, by seeking, or attempting to
obtain private satisfaction or revenge, by crossing
over the line, on any of the Indian lands, he shaU
forfeit all claim upon the United States, for such
indemnification: And provided, cUso, Thatnothiog
herein contained shall prevent the legal apprehen-
sion or arresting, within the limits^of any State
or district, of any Indian having so offended : And
provided, further, That it shall be lawful for the
President of the United States to deduct such sum
or sums as shall be paid for the property taken,
stolen, or destroyed, by any such Indian, out ot
the annual stipend which the United States are
bound to pay to the tribe to which such Indian
shall belong.
Sec. 15. And be it further enacted^ That the
superior courts in each of the said territorial dis-
tricts, and the circuit courts, and other courts of
the United States of similar jurisdiction in crimi-
nal causes, in each district of the United States,
in which any ofiiender ae^ainst this act shall be
apprehended, or, agreeab^ to the provisions of
this act, shall be brought for trial, shall have, and
are hereby invested with full power and authority
to hear and determine all crimes, ofiTenccs, and
misdemeanors, against this act; such courts pro-
ceeding therein in the same manner as if such
crimes, offences, and misdemeanors had been com-
mitted within the bounds of their respective dis-
tricts: and in all cases where the punishment
shall not be death, the county courts of quarter
sessions in the said territorial districts, and the
district couxts of the United States, in their re-
spective districts, shall have, and are hereby in-
vested with, like power to hear and determine the
same, any law to the contrary notwithstanding:
And, in all cases where the punishment shall \a
death, it shall be lawful for the Governor of either
of the territorial districts where the offender shall
be apprehended, or into which he shall be brought
for trial, to issue a commission of oyer and
terminer to the superior judges of such district
who shall have full power and authority to hear
and determine all such capital cases, in the same
manner as the superior courts of such districts
have in their ordinary sessions; and when the
ofiender shall be apprenended, or brought for trial
into any of the United States, except Kentucky
or Tennessee, it shall be lawful for the President
of the United States to issue a like commission to
any one or more judges of the Supreme Court of
the United States, and the juds^e of the district
in which such offender may' have been appre-
hended or shall have been brought for trial ; whicii
judges, or any two of them, shall have the sarce
jurisdiction m such capital cases, as the circsit
court of such district, and shall proceed to triil
1321
APPENDIX.
1322
Act8 of Congress,'
and judgment in the same manner as such circuit
court might or could do. And the district courts
of Kentucky*, Tennessee, and Maine, shall have
jurisdiction of all crimes, offences, and misde-
meanors committed against this act, and shall pro-
ceed to trial and judgment, in the same manner
as the circuit courts of the United States.
Sec. 16. And be it further enacted. That it
shall be lawful for the military force of the United
States to apprehend every person who shall or
may be found in the Indian country, over and be-
yond the said boundary line between the United
States and the said Indian tribes, in violation of
any of the provisions or regulations of this act,
and him or them immediately to convey, in the
nearest convenient and safe route, to the civil au-
thority of the United States, in some one of the
three next adjoining States or districts, to be pro-
ceeded against in due course of law: Provided^
That no person, apprehended by military force as
aforesaid, shall be detained longer than five days
after the arrest, and before removal. And all offi-
cers and soldiers who may have any such person
or persons in custody, shall treat them with all the
humanity which the circumstances will possibly
permit; and every officer and soldier who shall be
guilty of maltreating any such person, while in
custody, shall suffer such punishment as a court
martial shall direct: Provided^ That the officer
having custody of such person or persons shall, if
required by such person or persons, conduct him or
them to the nearest judge of the supreme or supe-
rior court of any State, who, if the offence is bail-
able, shall take proper bail if offered, returnable to
the district court next to be holdeu in said district,
which bail the said judge is hereby authorized to
take, and which shall be liable to be estreated as
any other recognizance for bail in anv court of
the tJnited States; and if said jud^e snail refuse
to act, or the person or persons fail to procure
satisfactory bail, then the said person or persons
are to be proceeded with according to the direc-
tions of this act.
Sec. 17. And be it further enacted, That if any
person^ who shall be charged with a violation of
any of^ the provisions or regulations of this act,
shall be found within any of the United States, or
either of the territorial districts of the United
States, such offender may be there apprehended
and brought to trial in the same manner as if such
crime or offence had been committed within such
State or district; and it shall be the duty of the
military force of the United States, when called
upon by the civil magistrate, or any proper officer,
or other person duly authorized for that purpose
and having a lawful warrant, to aid and assist
such magistrate, officer, or other person author-
ized as aforesaid, in arresting such offender, and
hita committiog to safe custody, for trial accord-
ing to law.
Sec. 18. And be it further enacted, That the
amount of fines and duration of imprisonment,
directed by this act as a punishment for the viola-
tion of any of the provisions thereof, shall be as-
certained and fixed, not exceeding the limits pre-
scribed, in the discretion of the court before whom
I the trial shall be had; and that all fines and for-
feitures which shall accrue under this act, shall be
one half to the use of the informant, and the other
half to the use of the United States; except where
the prosecution shall be first instituted on behalf
of the United States; in which case the whole
shall be to their use.
Sec. 19. And be it further enacted, That no-
thing in this act shall be construed to prevent any
trade or intercourse with Indians living on lands
surrounded by settlements of the citizens of the
United States, and bein^ within the ordinary ju»
risdiction of any of the individual States; or the
unmolested use of a road from Washington dis-
trict to Mero district, or to prevent the citizens of
Tennessee from keeping in repair the said road,
under the direction or orders of the Qovernor oi
said State, and of the navigation of the Tennessee
river, as reserved and secured by treaty; nor shall
this act be construed toprevent any person or per-
sons travelling from Knoxville to Price's settle-
ment, or to the settlement on Obed's river, (so
called,) provided they shall travel in the trace or
fiath which is usually travelled, and provided the
ndians make no objection ; but if the Indians ob-
ject, the President of the United States is hereby
authorized to issue a proclamation, prohibiting all
travelling on said traces, or either of them, as the
case may be; after which the penalties of this act
shall be incurred by every person travelling or
being found on said traces, or either of them, to
which the prohibition may apply, within the Indian
boundary, without a passport.
Sec. 20. And be it further enacted. That the
President of the United States be, and he is here*
by, authorized to cause to be clearly ascertained
and distinctly marked, in all such places as he
shall deem necessary, and in such manner as he
shall direct, any other boundary lines between
the United States and any Indian tribe, which
now are, or hereafter may be, established by treaty.
Sec. 21. And be it further enacted, That the
President of the United States be authorized to
take such measures, from time to time, as to him
may appear expedient to prevent or restrain the
vending or distributing of spirituous liquors among
all or any of the said Indian tribes, anything herein
contained to the contrary thereof notwithstanding.
Sec. 22. And be it further enacted, That this
act shall be in force from the passage thereof; and
so far as respects the proceedings under this act,
it is to be understood that the act, entitled "An
act to amend an act, entitled *An act giving effect
to the laws of the United States within the district
of Tennessee," is not to operate.
Approved, March 30, 1802.
An Act making a partial appropriation for the support
of Government during the year one thoupand eig^t
hundred and two.
Be it enacted, ^c, That the sum of one hundred
thousand dollars, to be paid out of any moneys in
the Treasury not othewise appropriated, shall be,
and the same hereby is, appropriated towards de-
fraying the expenditure ot the civil list, including
1^23
APPENDIX.
1324
'Acts of Congress,
the contingent expenses of the several depart-
ments, during the year one thousand eight hundred
and two.
Approved, April 2, 1802.
An Act making appropriation for defraying the ex-
pense of a negotiation with the British Government,
to ascertain the boundary line between the United
States and Upper Canada.
Be it enacted^ ^c, That a sum not exceeding ten
thousand dollars be, and the same is hereby, ap-
propriated, payable out of any money in the Trea-
sury not otherwise appropriated, to defrajr the ex-
pense which shall be incurred in negotiating with
the Government of Great Britain, for ascertaining
and establishing the boundary line between the
United States and the British province of Upper
Canada; when the President of the United States
shall deem it expedient to commence such nego-
tiation.
Approved, April 3, 1802.
An Act making an appropriation for defrajring the ex-
penses which may arise from carrying into effect the
convention made between the United States and the
French Republic.
Be it enactedj d^c. That, for the payment of such
demands as may be justly due for French vessels
and property captured, and which must be restor-
ed or paid for, pursuant to the convention between
the United States and the French Republic, there
be appropriated a sum not exceeding three hun-
dred and eighteen thousand dollars, to be paid,
under the direction of the President of the United
States, out of any public money in the Treasury
not otherwise appropriated.
Approved, April 3, 1802.
An Act to repeal the Internal Taxes.
Be it enacted^ ^c, That, from and after the thir-
tieth day of June next, the internal duties on stills,
and domestic distilled spirits, on refined sugars, li-
censes to retailers, sales at auction, carriages for
the conveyance of persons, and stamped vellum,
parchment, and paper, shall be discontinued, and
all acts and parts of acts relative thereto, shall,
from and after the said thirtieth day of June next,
be repealed : Provided^ That for the recovery ana
teceipt of such duties as shall have accrued, and
on the day aforesaid remain outstanding, and for
the payment of drawbacks or allowances on the
exportation of any of the said spirits or sugars,
legally entitled thereto, and for tne recovery and
distribution of fines, penalties, and forfeitures, and
the remisison thereof, which shall have been in-
curred before and on the said day^ the provisions
of the aforesaid act<« shall remain m full force and
virtue.
Sec. 2. And be it further enacted. That the
oflice of Superintendent of Stamps shall cease
and be discontinued from and after the thirtieth
day of April, one thousand eight hundred and
two; after wnich day the Commissioner of the
Revenue shall perform all the duties by law en<
joined on the said Superintendent of Stamps,
which may be required m pursuance of this act:
that the office of collectors of the internal duties
shall continue in each collection district respect-
ively, until the collection of the duties above men-
tioned shail have been completed in snch district,
and no ioneer, unless sooner discontinued by the
President of the United States, who shall be and
hereby is empowered, whenever the collection of
the said duties shall have been so far completed
in any district as to render, in his opinion, that
measure expedient, to discontinue any of the said
collectors, and to unite into one collection district
any two or more collection districts, lying and be-
ing in the same Slate: that the office of supervi-
sor shall continue in each State or district, re-
spectively, until the collection of the duties above
rnenlioned, togfether with the collectioo of the
direct tax, shall have been completed in each State
or district, and no longer; unless sooner discon-
tinued by the President of the United States, who
shall be and hereby is empowered, whenever the
collection of the said duties and tax shall have
been so far completed in any State or district as,
in his opinion, to render that measure expedient,
to discontinue any of the said offices ; in which
case, the collectors thereafter employed in the col-
lection of the said duties and tax in such State or
district shall be appointed and removed by the
President alone, and shall be immediately account-
able to the officers of the Treasury Department,
under such regulations as may be established by
the Secretary of the Treasury: that for the pro-
moting of the collection of any of the above men-
tioned duties or tax,- which may be outstand-
ing after the said thirtieth day of June next, the
President of the United States shall be, and he
hereby is empowered, at any time hereafter, to
make such allowance as he may think proper, in
addition to that now allowed by law to any of
the collectors of the said duties and tax, and the
same from time to time to vary: Provided, That
such additional allowance shall in no instance
exceed; in the aggregate, ^re per cent, of the gross
amount of the duties and tax outstanding on that
day : and the office of Commissioner of the Rev-
enue shall cease and be discontinued, whenever
the collection of the duties and tax above men-
tioned shall be completed, unless sooner discon-
tinued by the President of the United States, who
shall be. and hereby is empowered, whenever the
collection of the said duties and tax shall have
been so far completed as, in his opinion, to render
that nieasure expedient, to discontiniie the i^aid
office, in which case the immediate superintend-
ence' of the collection of such parts of the said
duties and tax as may then remain outstanding,
shall be placed in such officer of the Treasury
Department, as the Secretary for the time be-
ing, may designate : Provided, however^ That all
bonds, notes, or other instruments, whieh have
been charged with the payment of a duty, and
which shall, at any time prior to the said thirtieth
day of June, have been written or printed upot
vellum, parchment, or paper, not stamped or mark-
ed according to law, or upon vellum, parchmeaty
1325
APPENDIX.
1326
Acta of Congress,
or paper stamped or marked at a lower rate of
duty, than is, by law. required for such bond, note,
or other instrument, may be presented to any col-
lector of the customs within the State ; and where
there is no such collector, to the marshal of the
district, whose duty it shall be, upon the payment
of the duty with which such instrument was
chargeable, together with the additional sum of
ten dollars, for which duty and additional sum the
said collector or marshal shall be accountable to
the Treasury of the United States, to endorse up-
on some part of such instrument his receipt for
the same ; and thereupon the said bond, note, or
other instrument shall be, to all intents and pur-
poses, as valid and available to the person hold-
ing the same, as if it had been or were stamped,
counterstamped, or marked as by law required ;
anything in any act to the contrary, notwith-
standing. .
Sec. 3. And be it further enacted^ That owners
of stills, whose licenses to distil shall not have
expired on the thirtieth day of June next, shall at
their option, pay either the whole duty which
would have accrued on their stills on account of
such licenses, or the duty which would have ac-
crued on said stills, on the day aforesaid, if they
had taken licenses ending on that day : the own-
ers of snuff mills, whose licenses have not expired
on the first day of June, one thousand seven hun-
dred and ninety-six, shall be allowed a deduction
from the duties incurred on the same, proportion-
ate to the time thus remaining unexpired on such
licenses: that the several banks, which may have
agreed to pay the annual compensation of one
per cent, on their dividends, in lieu of the stamp
duty on the notes issued by them, shall pay only
at the rate of one per cent, per annum on sucn
dividends, to the thirtieth day of June next : that
retailers of wines and spirits, who may take li-
cences, after the passing of this act. shall pay for
such licenses only in proportion to the time
T^hich may intervene between the obtaining such
licenses and the thirtieth day of June next : and
that the owners of carriages for the conveyance
of persons, who may enter the same after the pass-
ing of this act, and before the thirtieth day of
June next, shall pay the duty for the same only to
the said thirtieth day of June.
Sec. 4. And he it Jurther enacted^ That the
supervisor of the Northwest district shall, in ad-
dition to the same commissions on the product
of all the internal duties collected in his district, as
heretofore have been allowed to the supervisor of
Ohio, be allowed an annual salary of five hun-
dred dollars, and at the rate of three hundred dol-
lars per annum for clerk hire.
Sec. 5. And he it further enacted^ That the fol-
lowing extra allowances for clerk hire, shall be
made for one year, to the supervisors of the fol-
lowing districts, as a full compensation for the
additional duties arising from the settlement of
accounts of certain inspectors of the internal rev-
enues, whose offices have been suppressed by the
President of the United States \ tnat is to say, to
each of the supervisors of Massachusetts, Penn-
sylvania, Maryland, North Carolina, and South
Carolina, the sum of eight hundred dollars, and to
the supervisor of Virginia, the sum of five hund-
red dollars.
Sec. 6. And he it fyrther enactedy That so
much of any act as directs an annual entry of
stills to be made, be, and the same hereby is,
repealed.
Sec. 7. And he it further enacted^ That the cer-
tificates accompanying foreign distilled spirits,
wines, and teas, which are now furnished by the
supervisors to the inspectors of the ports, shall^
from and after the aforesaid thirtieth day of June,
be furnished by such collectors of the customs, a»
may be designated by the Secretary of the Treas-
ury. And it shall be the duty oi the inspectors
to account with such collectors, for the applica-
tion of such certificates, in like manner, and under
the same regulations as heretofore they have ac-
counted with the supervisors.
Sec. 8. And he it further enacted^ That, for pre-
paring and issuing the certificates, the collectors
performing that duty shall be entitled to, and re-
ceive, the same compensation as heretofore has
been allowed to the supervisors, respectively.
Sec.«9. And he it farther enacted^ That all
persons who shall, on or after the thirtieth day of
June next, have any blank vellum, parchment, or
paper, which has been stamped oy the superin-
tendent of stamps and counterstamped by tha
commissioner of the revenue, and on which a duty
has been paid to the use of Government, shall be
entitled to receive from such collector or collect-
ors of the customs, or other revenue officer in tha
respective States or districts as ipay be designated
for that purpose by the Secretary of the Treasorj,
the value of the said stamps, aher deducting, in
all cases, seven and an half percent., and the said
officers are hereby authorized to pay the same:
Provided, The said blank vellum, parchment, or
paper, be presented within four months after tha
thirtieth day of June next.
Approved, April 6, 1802.
An Act authorizing the erection of certain light-houses,
and for other puiposes. •
Be it enacted, f c, That, under the direction of
the Secretary of the Treasury, there shall be pur-
chased, for the use of the United States, the land
whereon lately stood the light-house on Qurnet
Point, and so much land adjoining thereto, as may
be sufficient for vaulu and any other purposes ne-
cessary for the better support of the said lightr
house.
Sec. 2. And he it further enacted, That the
Secretary of the Treasury shall be, and he is
hereby, authorized, at his discretion, to procure a
new lantern or lanterns, with suitable distinctions
and to cause convenient vaults to be erected ; ana
the said light-house, on the Gurnet, at the entrance
on Plymouth harbor, to be rebuilt.
.Sec. 3. And he it further enacted. That the
Secretary of the Treasury shall be, and he is
hereby, authorized, to cause to be rebuilt, of such
height as he may oeem expedient, the liffht-house
now situated on the Eastern end of Newcastle
1327
APPENDIX.
1328
Acts of Congress.
Island, at the entrance of Piscataqua river, either
on the land owned by the United States, or on
Pollock Rock : Provided^ That if built on Pollock
Rock, the Legislature of New Hampshire shall
vest the property of the said rock in the United
States, and cede the jurisdiction of the same.
Sec. 4. And he it further enacted. That the
Secretary of the Treasury shall be, and be is
hereby, authorized and directed to cause a suffi-
cient lif;ht-house to be erected on Lynde's point,
at the mouth of Connecticut river, in the State
of Connecticut, and to appoint a keeper, and
otherwise provide for such light-house, at the ex-
gense of the United States : Provided, That suf-
cient land for the accommodation of such light-
house can be purchased at a reasonable price, and
the Legislature of the State of Connecticut shall
cede the jurisdiction over the same to the United
States.
Sec. 5. And be it further enacted, That the
Secretary of the Treasury be directed to cause
proper light-houses to be built, and buoys to be
|>laced. in the situations necessary for the naviga-
tion cl the sound between Long Island and the
main ; and be. to that effect, authorized to cause,
by proper and intelligent persons, a survey to be
taken of the said sound, as far as may be requis-
ite; and to appoint keepers, and otherwise provide
for such light-houses, at the expense of the United
States: Provided, That sufficient land for the
accommodation of the respective light-houses can
be purchased at a reasonable price; and that the
Legislatures of Rhode Island, Connecticut, and
New York, shall, respectively, cede the jurisdic-
tion over the same to the United Slalos.
Sec. 6. And he it further enacted, That the
Secretary of the Treasury shall be, and he is
hereby, authorized and directed to cause a suffi-
cient light-house to be erected on the south point
of Cumberland island, at the entrance of St. Ma-
ry's river, within the State of Georgia; and that,
under the direction of the said Secretary, there
shall be purchased, if the same cannot otherwise
be obtained, sufficient land for the erection of the
said light-house, and accommodations for the bet-
ter support thereof: Provided^ That the Legisla-
ture of Qeore[ia shall cede the jurisdiction over the
same to the united States.
Sec. 7. And he it further enacted, That there
shall be, and hereby are, appropriated, for the re-
imbursement of the merchants of Plymouth and
Duxbury, for moneys expended by them in erect-
ing a temporary lignt on the Gurnet, a sum not
exceeding two hundred and seventy dollars ; for
the rebuilding the light-house on the said Gurnet,
a sum not exceeding two thousand five hundred
dollars; for rebuilding the light-house on the
eastern end of Newcastle island, a sum not ex-
ceeding^ four thousand dollars; and for the erec-
tion ofthe said li^ht-house on said Lynde's point,
a sum not exceedmg two thousand nve hundred
dollars; for the erection of a light-house on Cum-
berland South Point, a sum not exceeding four
thou.«iand dollars ; and for taking the surve)r, and
for erecting light-houses and placing buoys in the
sound, a sum not exceeding eight thousand dollars
to be paid out of any moneys which may be in the
Treasury, not otherwise appropriated.
Sec. 8. And he it further enacted, That it shall
be lawful for the Secretary of the Treasury, under
the direction of the President of the United States,
to cause to be expended, in repairing and erecting
public piers in the river Delaware, a sum not ex-
ceeding thirty thousand dollars; and that the
same be paid out of any moneys in the Treasury,
not otherwise appropriated : Provided, That tbe
jurisdiction of the site where any such piers may
be erected, shall be first cedea to the United
States, according to the conditions in such case by
law provided.
Approved, April 6, 1802.
An Act for the relief of the Marshals of certain districts
therein mentioned.
■ Be it enacted, ^c, That the Secretary of the
Treasury be, and he hereby is, authorized and
directed to apportion to the several marshaU of
the districts of Virginia. Maryland, and Pennsyl-
vania, respectively, who have been employed or
concerned in taking the late census, the compen-
sation allowed by'the ''Act providing for the sec-
ond census or enumeration of the inhabitants of
the United States," according to the service each
may have performed.
Approved, April 6, 1802.
An Act declaring the assent of CongreM to an act ofthe
General Assembly of Virginia, therein mentioiied.
Be it enacted, ^c. That the assent of Congress
is hereby given, and declared, to an act ofthe
General Assembly of Virginia, entitled '^An act
to amend, and reduce into one, the several acts cf
Assembly for improving the navigation of Appo-
mattox river from Broadway, to Pocahuntas
bridge."
Approved, April 14, 1802.
An Act to revive and continue in force an act, entitled
<* An act to augment the salaries of the officers therein
mentioned," passed the second day of March, one
thofi^and seven hundred and ninety-nine.
Be it enacted, ^c, That an act. entitled ^ An
act to augment the salaries of the officers therein
mentioned," be, and the same is hereby, revived
and continued in force for and during the term of
two years from the commencement of the present
year.
Approved, April 14, 1802.
An act to amend an act, entitled " An act to retain a
further sum on drawbacks, for the expenses incident
to the allowance and payment thereof, and in lien of
stamp duties on debentures."
Be it enax:ted, ^c, That tbe second section of
the act, entitled *' An act to retain a further sum
on drawbacks, for the expenses incident to tbe
allowance and payment thereof, and in lieu of
stamp duties on debentures," shall not be deemed
to operate upon unregistered ships or vessels owned
1329
APPENDIX.
1330
Acts of Congress,
by the citizens of the United States at the time
01 passing the said act, in those cases where such
ship or vessel at that time possessed a sea-letter or
other regular document, issued from a custom-
house of the United States, proving such ship or
vessel to be American property.
Sec. 2. And he it further encLcted^ That, when-
ever satisfactory proof shall be made to the Sec-
retary of the Treasury that any unregistered ship
or vessel was in fact the property, in whole, of a
citizen or citizens of the United States, on the
thirteenth day of May, in the year one thousand
eight hundred, that the Secretary of the Treasury
be, and he is hereby, authorized and directed to
cause to be issued to such ship or vessel a certifi-
cate, which shall entitle such unregistered ship or
vessel to the same privileges which are herein-
before granted to unregistered ships or vessels
owned by citizens of the United States, and car-
rying a sea-letter or other regular document, issued
from a custom-house of the Uqited States before
the passing of the said act, entitled " An act to
retain a further sum on drawbacks, for the expenses
incident to the allowance and payment thereof,
and in lieu of stamp duties on debentures.'^
Approved, April 14, 1802.
An Act to establish- an uniform rule of naturalization,
and to repeal the acts heretofore pamed on that sub-
ject.
Be it enacted^ ^c. That any alien, being a free
white person, may be admitted to become a citi-
zen of the United States, or anv of them, on the
following conditions, and not otherwise.
First. That he shall have declared, on oath or
affirmation, before the supreme^ superior, district,
or circuit court of some one of the States, or of
the Territorial districts of the United States, or a
circuit or district court of the United States, three
years at least before his admission, that it was bona
fide his intention to become a citizen of the United
States, and to renounce forever all allegiance and
fidelity^ to any foreign prince, potentate, state, or
sovereignty whatever, and particularly, by name,
the prince, potentate, state, or sovereignty, whereof
such alien may at the time be a citizen or subject.
Secondly, That he shall, at the time of the ap-
plication to be admitted, declare on oath or af-
firmation, before some one of the courts aforesaid,
that he will support the Constitution of the Unit-
ed States, and that he doth absolutely and en-
tirely renounce and abjure all allegiance and
fidelity to every foreign prince, potentate, state,
or sovereignty, whatever, and particularljTi hy
name, the prince, potentate, state, or sovereignty
-whereof he was before a citizen or subject ; which
proceedings shall be recorded by the clerk of the
court.
Thirdly. That the court admitting such alien
shall be satisfied that he has resided within the
United States five years, at least, and within the
State or Territory where such court is at the time
held, one year at least; and it shall further appear
to their satisfaction that during that time he has
behaved aa a man of good moral character, at-
tached to the principles of the Constitution of the
United States, and well disposed to^the good or-
der and happiness of the same: Provided^ That
the oath of the applicant shall, in no case, be al-
lowed to prove his residence.
Fourthly, That in case the alien applying to be
admitted to citizenship shall have borne any he-
reditary title, or been of any of the orders of no-
bility in the kingdom or state from which he
came, he shall, in addition to the above requisites,
make an express renunciation of his title or order
of nobility m the court to which his application
shall be made, which renunciation shall be record-
ed in the said court: Provided, That no alien
who shall be a native citizen, denizen, or subject,
of any country, ^state, or sovereign, with whom
the United States shall be at war at the time of
his application, shall be then admitted to be a cit-
izen of the United States: Pjwided, also. That
any alien who was residing within the limits, and
under the jurisdiction of the United States, before
the twenty-ninth day of January, one thousand
seven hundred and ninety-five, may be admitted
to become a citizen, on due proof made to some
one of the courts aforesaid that he has resided two
years, at least, within and under the jurisdiction
of the United States, and one year, at least, im-
mediately preceding his application, within the
State or Territory where such court is at the time
held ; and on his declaring on oath, or affirmation,
that he will support the Constitution of the Unit-
ed States, and that he doth absolutely and entirely
renounce and abjure all allegiance and fidelity to
any foreign prince, potentate, state, or sovereign-
ty, whereof he was before a citizen or subject;
and moreover, on its appearing to the satisfaction
of the court, that during the said term of two
years, he has behaved as a man of good moral
character, attached to the Constitution of the
United States, and well disposed to the ffood or-
der and happiness of the same; and where the
alien applying for admission to citizenship shall
have borne any hereditary title, or been of any of
the orders of nobility in the kingdom or state
from which he came, on his moreover niaking in
the court an express renunciation of his title or
order of ngbility, before he shall be entitled to
such admission : all of which proceedings, requir-
ed in thin proviso to be performed in the court,
shall be recorded by the clerk thereof: And pro-
videdj cdsOy That any alien who has resided with-
in the limits and under the jurisdiction of the
Ujiited States at any time between the said twen-
ty-ninth day of January, one thousand seven hun-
dred and ninety-five, and the eighteenth day of
June, one thousand seven hundred and ninety-
eight, may, within two years after the passing of
this act. be admitted to become a citizen, without
a compliance with the first condition above spe-
cified.
Sec. 2. Provided^ cUso^ and be it Jiirther enacted.
That, in addition to the directions aforesaid, all
free white persons, being aliens, who may arrive
in the United States after the passinfi^ of this act,
shall, in order to become citizens of the United
States, make registry and obtain certificates in
1331
APPENDIX.
1332
Acts of Congresa.
the following manner, to wit : everv person de-
sirous of beug naturalized shall, it of the age
of twenty-one years, or held in service, shall be
reported by his parent, guardian, master, or mis-
tress, to the clerk of the district court of the dis-
trict where such alien or aliens shall arrive, or to
some other court of record of the United States,
or of either of the Territorial districts of the same,
or of a particular State ; and such report shall as-
certain the name, birth-place, age, nation, and alle-
giance of each alien, together with the country
whence he or she migrated, and the place of his
or her intended settlement ; and it shall be the
duty of such clerk, on receiving such report, to
record the same in his office, and to grant to the
person making such report, and to each individual
concerned therein, whenever he shall be required,
a certificate, under his hand and seal of office, of
such report and registry ; and for receiving and
registering each report of any individual or family,
he shall receive fifty cents ; and for each certificate
granted pursuant to this act, to an individual or
family, fifty cents : and such certificate shall be
exhibited to the court by every alien who may
arrive in the United States after the passing of
this act, on his application to be naturalized, as
evidence of the time of his arrival within the
United States.
Sec. 3. And whereas, doubts have arisen whe-
ther certain courts of record in some of the States
are included within the description of district or
circuit courts : Be it further enacted, That every
court of record in any individual State, having
common law jurisdiction, and a seal, and clerk or
prothonotary, shall be considered as a district
court within the meaning of this act ; and everv
alien who may have been naturalized in any sucn
court, shall enjoy, from and after the passing of
this act, the same rights and privileges as if he
bad been naturalized m a district or circuit court
of the United States.
Sec. 4. And be it further enacted, That the chil-
dren of persons duly naturalized under any of the
laws of the United States, or who, previous to the
passing of anv law on that subject by the Govern-
ment of the United States, may have become citi-
zens of any one of the said States, und^r the laws
thereof, being under the age of twenty-one years,
at the time of their parent's being so naturalized
or admitted to the rights of citizenship^ shall, if
dwelling in the United States, be considered as
citizens of the United States, and the children of
persons who now are or have been citizens of the
United States, shall, though born out of the lim-
its and jurisdiction of the United States, be con-
sidered as citizens of the United States: Provided.
That the rights of citizenship shall not descena
to persons whose fathers have never resided with-
in the United States: Provided, also, That no per-
son heretofore proscribed by any State, or who
has been legall^ convicted of having joined the
army of Great Britain, during the late war, shall
be admitted a citizen, as aforesaid, without the
consent of the Legislature of the State in which
such person was proscribed.
Sec. 5. And be U further enacted, That all acts
heretofore passed respecting naturalization, be,
and the ^(ame are, herehy repealed.
Approved, April 14, 1802.
An Act in addition to an act, entitled **An act in ad-
dition to an act regulating the gnrants of Itnd tp-
propriated for military services, and for the 8ocic^
of the United Brethren for propagating the Goipel
among the Heathen."
Be it enacted^ ^c, That from and after the
passing of this act, and until the first day of Jan-
uary next, it shall be lawful for the holders or
proprietors of warrants heretofore granted in coq-
sideration of military services, or register's certifi-
cates of fifty acres, or more, granted, or hereafter
to be granted, agreeable to the third section of
an act, entitled "An act in addition to an act,
entitled an act, regulating the grants of land ap-
propriated for military services, and for the Society
of the United Brethren for propafi^atin^ the Gospd
among the Heathen," approved the first day of
March, one thousand eight hundred, to register
and locate the same, in the same manner, and under
the same restrictions, as might have been dooe
before the first day of January last : Prodded, That
persons holding register's certificates for a less
quantity than one hundred acres, may locate the
same on such parts of fractional townships, as
shall, for that purpose, be divided by the Secretary
of the Treasury into lots of fifty acres each.
Sec. 2. And be it further enacted-. That it shall
be the duty of the Secretary of War to receive
claims to lands for military services, and claims for
duplicates of warrants issued from his office, oi
from the land office of Vireinia, or of plats and
certificates of surveys founded on such warrants,
suggested to have been lost or destroyed, until the
first day of January next, and no longer ; and, im-
mediately thereafter, to report the same to Con-
gress, designating the numbers of claims of each
description, with his opinion thereon.
Approved, April 26, 1802.
An Act to amend the Judicial System of the
Sutes.
Be it enacted, fc, That, from and after the
passing of this act, the Supreme Court shall be
holden by the justices thereof, or anv four of ihem,
at the city of Washington, and shall have one
session in each and every year, to commence on
the first Monday of February, annually, and that
if four of the said justices shall not attend within
ten days after the time hereby appointed for the
commencement of the said session, the business of
the said court shall be continued over till the
next stated session thereof: Provided, o/vo^
That'any one or more of the said justices, attend-
ing as aforesaid, shall have power to make all ne-
cessary orders touching any suit, action, writ of
error, process, pleadings, or proceedings, retomed to
the said court or depending therein, preparatory to
the hearing, trial, or decision of such action, suit,
appeal, writ of error, process, pleadings, or pro-
ceedings. And so much of the act, entitled ''Aa
act to establish the judicial courts of the United
1333
APPENDIX.
1334
Acts of Congress.
States," passed the twenty-fourth day of Septem-
ber, seventeen hundred and eighty-nine, as pro-
vides for the holding a session of the Supreme
Court of the United States on the first Monday
of August, annually, is herehy repealed.
Sec. 2. And be it further enacted^ That it shall
be the duty of the associate justices resident in the
fourth circuit formed hy this act, to attend at the
city of Washington on the first Monday of Au-
gust next, and on the first Monday of August each
and every year thereafter, who shall have power
to make ail necessary orders touching any suit,
action, appeal, writ of error, process, pleadings, of
proceedings, returned to the said court, or depend-
ing therein, preparatory to the hearing, trial, or
decision of such action, suit, appeal, writ of error,
process, pleadings, or proceedings ; and that all
writs and process may be returnable to the said
court on the said first Monday in August, in the
same manner as to the session of the said court
hereinbefore directed to be holden on the first
Monday of February, and may also hear teste on
the saia first Monday in Aucrust, as thousrh a ses-
sion of the said court was holden on that day ; and
it shall be the duty of the Clerk of the Supreme
Court to attend the said justice on the said first
Monday of August, in each and every year, who
shall make due entry of all such matters and things
as shall or may be ordered as aforesaid by the said
justice ; and at each and every such August ses-
sion, all actions, pleas, and other proceedings rela-
tive to any cause, civil or criminal, shall be con-
tinued over to the ensuing February session.
Sec. 3. And he it further enacted, That all ac-
tions, suits, process, pleadings, and other proceed-
ings, of what nature or kind soever, civil or crim-
inal, which were continued from the Supreme
Court of the United States, which was begun and
holden on the first Monday of December fast, to
the next court to have been holden on the first Mon-
day of June, under the act which passed on the thir-
teenth day of February, one thousand eight hun-
dred and one, entitled ^'An act to provide for the
more convenient organization of the courts of the
United States;" and all writs, process, and pro-
ceedings, as aforesaid, which are or may be made
returnable to the same June session, shall be con-
tinued, returned to, and have day, in the session
to be holden by this act, on the first Monday of
August next ; and such proceedings shall be had
thereon, as is hereinbefore provided.
Sec 4. And be it further enacted, That the dis-
tricts of the United States (excepting the districts
of Maine, Kentucky, and Tennessee) shall be
formed into six circuits, in manner following :
The districts of New Hampshire, Massachu-
setts, and Rhode Island, shall constitute the first
circuit ;
The districts of Connecticut, New York, and
Vermont, shall constitute the second circuit;
The districts of New Jersey and Pennsylvania,
shall constitute (be the third circuit ; ,
The districts of Maryland and Delaware, shall
constitute the fourth circuit;
The districts of Tirginia and North Carolina,
^all constitute the fiftn circuit ;
And the districts of South Carolina and Geor-
gia, shall constitute the sixth circuit.
And there shall beholden annually in each dis-
trict of the said circuits two courts, which shall
be called circuit courts. In the first circuit, the said'
circuit court shall consist of the justice ol*the Su-
preme Court residing within the said circuit ; and
the district judge of the district where such court
shall be holden. And the sessions of the said
court, in the district of New Hampshire, shall
commence on the nineteenth day of May, and the
second day of November, annually ; in the dis-
trict of Massachusetts, on the first day of June,
and the twentieth day of October, annually ; in
the district of Rhode Island, on the fifteenth day
of June, and the fifteenth day of November, an-
nually.
In the second circuit, the said circuit court shall
consist of the senior associate justice of the Su-
preme Court residing within the fifth circuit, and
the distriqt judge of the district, where such court
shall be holden.
And the sessions of the said court in the district
of Connecticut, shall commence on the thirteenth
nay of April, and the seventeenth day of Septem*
her. annually: in the district of New York, on
the first day of April, and the first day of Septem-
ber, annually : in the district of Vermont, on the
first day of May, and the third day of October,
annually.
In the third circuit, the said circuit court shall
consist of the justice of the Supreme Court resid-
ing within the said circuit, and the district judge
of the district where such court shall be holden ;
and the sessions of the said court, in the district
of New Jersey, shall commence on the first day
of April, and the first day of October, annually:
in the district of Pennsylvania, on the eleventh
day of April, and the eleventh day of October,
annually.
In the fourth circuit, the said circuit court shall
consist of the justice of the Supreme Court re*
siding within the said circuit, and the district
judse of the district where such court shall be
holden ; and the sessions of the said court in the
di.strict of Delaware, shall commence on the third
day of June, and the twenty-seventh day of Octo-
ber, annually ; in the district of Maryland, on the
first day of May, and the seventh day of Novem*
her, annually ; to be holden hereafter at the city
of Baltimore only.
In the fifth circuit, the circuit court shall con-
sist of the present Chief Justice of the Supreme
Court and the district judge of the district where
such court shall be holden ; and the sessions of
the said court in the district of Virginia, shall
commence on the twenty-second day of May, and
the twenty-second day of November, annually ;
in the district of North Carolina, on the fifteenth
day of June, and the twenty-ninth day of Decem-
ber, annually.
In the sixth circuit, the said circuit court shall
consist of the junior associate justice of the Su-
preme Court in the fifth circuit, and the district
udge of the district where such court shall be
olden ; and the sessions of the said court in the
£
1335
APPENDIX.
Acta of Congress.
1336
district of South Carolina shall commence at
Charleston on the twentieth day of May, and at
Columbia on the twentieth day of November, annu-
ally ; in the district of Georgia, on the sixth day
of May at Savannah, and on the fourteenth day '
of December hereafter at Louisville, annually:
Provided. That, when only one of the judges here-
by directed to hold. the circuit courts shall attend,
such circuit court may be held by the judge so
attending: and that when any of the said days
shall happen on a Sunday, then the said court
herebv directed to be holden on such day, shall
be holden on the next day thereafter; and the cir-
cuit courts, constituted by this act, shall be held
at the same place or places in each district of
every circuit, as by law they were respectively
required to be held previous to the thirteenth day
of February, one thousand eight hundred and one,
excepting as is hereinbefore directed. And none
of the said courts shall be holden until after the
first day of July next ; and the clerk of each dis-
trict court shall be also clerk of the circuit
court in such district, except as is hereinafter
excepted.
Sec. 5. And be it further enacted, That on eve-
ry appointment which shall be hereafter made of a
chief justice or associate justice, the said chief
justice and associate justices shall allot themselves
among the aforesaid circuits as they shall think
fit, and. shall enter such allotment on record. And
in case no such allotment shall be made by them
at their session next succeeding such appointment,
and also after the appointment of any judge, as
aforesaid, and before any allotment shall have
been made, it shall and may be lawful for the
President of the United States to make such al-
lotment as he shall deem proper, which allotment,
made in either case, shall be binding, until ano-
ther allotment shall be made ; and the circuitcourts
constituted by this act, shall have all the power,
authority, and jurisdiction within the several dis-
tricts of their respective circuits, that, before the
thirteenth day of February, one thousand eight-
hundred and one, belonged to the circuit courts
of the United States; and in all cases which, by
appeal or writ of error, are, or shall be, removed
from a district to a circuit court, judgment shall
be rendered in conformity to the opinion of the
judge of the Supreme Court presiding in such
circuit court.
Sec. 6. And be it Jurther enacted. That when-
ever any question shall occur before a circuit court
upon which the opinions of the judges shall be
opposed, the point upon which tne disagreement
shall happen, shall, during the same term, upon
the request of either party, or their counsel, be
stated under the direction of the judges, and cer-
tified under the seal of the court, to the Supreme
Court, at their next session to be held thereafter ;
and shall, by the said court, be finally decided.
And the decision of the Supreme Court, and their
order in the premises, shall be remitted to the cir-
cuit court, and be there entered of record, andshall
have effect according to the nature ot the said
i'udgment and order: Providedj That nothing
lerein contained shall prevent the cause from
proceeding, if, in the opinion of the court, farther
proceedings can be had, without prejudice to the
merits : And provided, also. That imprisonmeat
shall not be allowed, nor punishment in any case
be inflicted, where the judges of the said court
are divided in opinion upon the questioa touchiog
the said imprisonment or punishmeut.
Sec. 7. And be it further enacted. That the
district of North Carolina shall be divided into
three districts, one to consist of all that part
thereof which, by the laws of the State of North
Carolina, now forms the districts of Eden ton and
Halifax, which district shall be called the district
of Albemarle, and a district court in and for the
same shall be holden at Edenton by the district
judge of North Carolina, on the thira Tuesdky in
April, on the third Tuesday in August, and oa
the third Tuesday in December, in each and ere*
ry year ; one other to be called the district of
Pamptico, and to consist of all that part of North
Carolina which, by the laws of the said State,
now forms the districts of Newbern and Hillsbo-
rough, together with all that part of the district
of Wilmington which lies to the northward and
eastward of New river; for which district of
Pamptico, a district court shall be holden at New-
bern, by the district judge last aforesaid, on the
second Tuesday in April, on the second Tuesday
in August, and on the second Tuesday in Decem-
ber in each and every year; and one other, to
consist of the remaining part of the said district
of North Carolina, and to be called the district of
Cape Fear, in and for which a district court shall
be nolden at Wilmington by the district judge last
aforesaid, on the first Tuesday in April, on the
first Tuesday in August, and on the first Tuesday
in December,, in each and every year; which said
district courts, hereby directed to be holden, shall
respectively have and exercise, within their sev-
eral districts, the same powers, authority, and ju-
risdiction, wnich are vested, by law, in toe district
courts of the United States.
Sec. 8. And be it further enated. That the cir-
cuit court and district courts for the district of
North Carolina shall appoint clerks for the said
courts respectively, which clerks shall reside and
keep the records of the said courts at the places of
holding the courts whereto they shall respectively
belong, and shall perform the same duties and
be entitled to and receive the same emoluments
and fees, respectively, which are by law estab-
lished for the clerks of the circuit and district
courts of the United States respectively.
Sec. 9. And be it further enacted, That all ac-
tions, causes, pleas, process, and other proceedings
relative to any cause, civil or criminal, which
shall be returnable to, or depending in the sevoal
circuit or district courts of the United States on
the first day of July next, shall be, and are hereby
declared to be, respectively transferred, returned
and continued to the several circuit and dis-
trict courts constituted by this act. at the times
hereinbefore and hereinafter appointed for the
holding of each of the said courts, and shall be
heard, tried, and determined therein in the same
manner and with the same efiect, as if no change
1337
APPENDIX.
1338
Acts of Congress.
had been made in the said coarts. And it shall
be the duty of the clerk of each and every court
hereby constituted, to receive and to take into his
safe-keeping the writs, process, pleas, proceedings,
and ])apers, of all those causes and actions which,
by this act, shall be transferred, returned, or con-
tinued to such court, and also all the records and
office papers of every kind respectively belonging
to the courts abolished by the repeal of the act,
entitled ^' An act to provide for the more conve-
nient organization of the courts of the United
States," and from which the said causes shall
have been transferred as aforesaid.
Sec. 10. Arid he it further enacted^ That all
suits, process, pleadings, and other proceedings, of
what nature or kind soever, depending in the cir-
cuit court in the district of Ohio, and which shall
have been, or may hereafter be commenced within
the Territory of the United States Northwest of
the river Ohio, in the said court, shall, from and
after the first day of July next, be continued over,
returned, and made cognizable, in the superior
court of the said Territory next thereafter to be
holden, and all actions, suits, process, pleadings,
and other proceedings^ as aforesaid depending in
the circuit court of the said district, and which
shall have been or may hereafter be commenced
within the Indiana Territory, in said court, shall,
from and after the first day of Jnly next, be con-
tinued over, returned and made cognizable in the
superior court of the said Indiana Territory, next
thereafter to be holden.
^Ec,\\. Andheit Jurther enacted, That in all
cases in which proceedings shall, on the said first
day of July next, be pendmg under a commission
of bankruptcy issued in pursuance of the afore-
said act, entitled " An act to provide for the more
convenient organization of the courts of the Uni-
ted States," the cognizance of the same shall be,
and hereby is, transferred to, and vested in, the
district judge of the district within which such
commission shall have isRued^ who is hereby em-
powered to proceed therein, m the same manner
and to the same effect, as if such commission of
bankruptcy had been issued by his order.
Sec. 12. And be it further enacted, That, from
and after the first day of July next, the district
judges of Kentucky and Tennessee shall be, and
hereby are, severally entitled to a salary of fifteen
hundred dollars annually, to be paid quarter yearly
at the Treasury of the United States.
Sec. 13. Ani be it further enacted, That the
, marshals and attorneys of the United Slates, for
the districts which were not divided, or within
the limits of which new districts were not erected
by the act entitled "An act to provide for the
Tnore convenient organization of the courts of the
United States," passed the thirteenth day of Feb-
ruary, one thousand eight hundred and one, shall
contmue to be marshals and attorneys for such
districts respectively, unless removed by the Pres-
ident of the United States, and in all other dis-
tricts which were divided or within the limits of
which new districts were erected by the last re-
cited act, the President of the United States be^
and hereby is, empowered from and after the first
day of July next to discontinue all such supernu-
merary marshals and district attorneys of the
United States in such districts, respectively, as he
shall deem expedient, so that there shall be but
one marshal and district attorney to each district:
and every marshal and district attorney who shall
be continued in ofldce. or appointed by the Presi-
dent of the United States in such districts, shall
have and exercise the same powers, perform the
same duties, give the same bond with sureties,
take the same oath, be subject to the same penal-
ties and regulations as are, or may be prescribed
by law, in respect to the marshals and district
attorneys of the United States. And every mar-
shal and district attorney who shall be so discon-
tinued as aforesaid shall be holden to deliver over
all papers, matters, and things, in relation to their
respective offices, to such marshals and district
attorneys, respectively, who shall be so continued
or appointed as aforesaid in such district, in the
same manner as is required by law in cases of re-
signation or removal from office.
Sec. 14. And be it further enacted, That there
shall be appointed by the President of the United
States, from time to time, as many general com-
missioners of bankruptcy, in each district of the
United States, as he may deem necessary ; and
upon petition to the iudge of a district court for
a commission of bauKruptcy, he shall proceed as
is provided in and by an act, entitled '^An act to
establish an uniform system of bankruptcy through-
out the United States," and appoint, not exceed-
ing three of the said general commissioners as
commissioners of the particular bankrupt peti-
tioned against; and the said commissioners, to-
?^eiher with the clerk, shall each be allowed, as a
iiU compensation for their services, when sitting
and acting under their commissions, at the rate of
six dollars per day for every day which they may
be employed in the same ousiness, to be appor*
tioned amon^^ the several causes on which they
may act on the same day, and to be paid out of
the respective bankrupt's estates : Provided, That
the commissioners, wno may have been, or may
be appointed in any district before notice shall be
given of the appointment of commissioners for
such district by tne President in pursuance of this
act, and who shall not then have completed their
business, shall be authorized to proceed and finish
the same upon the terms of their original ap-
pointment.
Sec. 15. And be it further enacted. That the
stated session of the district court, for the district
of Virginia, heretofore directed to be holden in
the city of Williamsburg, shall be holden in the
town of Norfolk, from and after the first day of
July next; and tne stated sessions of the district
court for the district of Maryland, shall hereafter
be holden in the city of Baltimore only; and in
the district of Oeorgia, the stated sessions of the
district court shall be held in the city of Savan-
nah only.
Sec. 16. And be it Jurther enacted, That for
the better establishment of the courts of the Uni-
ted States within the State of Tennessee, the said
State shall be divided in two districts, one to con-
•>
1339
APPENDIX.
1340
Ads of Congress.
sist of that part of said State, which lies on the.
east side of Cumberland mountain, and to be
called the district of East Tennessee, the other to
consist of the remaining part of said State, and
to be called the district of West Tennessee.
Sec. 17. And he it further enacted^ That the
district judge of the United States, who shall
hereafter perform the duties of district juds^e,
within the State of Tennessee, shall annually
hold four sessions, two at Knoxville, on the fourth
Monday of April, and the fourth Monday of Oc-
tober, in and for the district of East Tennessee,
and two at Nashville, on the fourth Monday of
May, and the fourtK Monday of November, in
and for the district of West Tennessee.
Sec. 18. And be it further enacted^ That there
shall be a clerk for each of the said districts of
East and West Tennessee, to be appointed by the
judse thereof, who shall reside and keep the re-
cords of the said courts at the places of holding
the courts, whereto they respectively shall belong,
and shall perform the same duties, and be entitled
to. and receive the same emoluments and fees
wnich are established by law for the clerks of the
district courts for the United States, respectively.
Sec 1Q. And he it further enacted^ That there
shall be appointed, in and for each of the districts
of ]$ast and West Tennessee, a marshal, whose
duty it shall be to attend the district courts hereby
established, and who shall have and exercise
within sucn district, the same powers, perform the
same duties, be subiect to the same penalties, give
the same bond witn sureties, take tlie same oath,
be entitled to the same allowance, as a full com-
pensation for all extra services, as hath heretofore
been allowed to the marshal of the district of
Tennessee, by a law, passed the twenty-eighth
day of February, one thousand seven hundred
and ninety-nine, and shall receive the same com«
pensation and emoluments, and in ail respects be
subject to the same regulations as are now pre-
scribed by law, in respect to the marshals of the
United States heretofore appointed: Provided,
That the marshals of the districts of East and
West Tennessee, now in office, shall, during the
periods for which they have been appointed, un-
less sooner removed by the President of the United
States, be and continue marshals for the several
districts hereby established, within, which they
respectively reside.
Sec. 20. And be it further enacted^ That there
shall be appointed, for each of the districts of East
and West Tennessee, a person learned in the law,
to act as attorney for the United States within
such district; which attorney shall take an oath
or affirmation for the faithful performance of the
duties of his office, and shall prosecute, in such
district, all delinquencies, for crimes and offences,
cognizaUe under the authority of the United
States, and all civil actions or suits, in which the
United States shall be concerned; and shall be
entitled to the same allowance, as a full compen-
sation for all extra services, as hath heretofore
been allowed to attorneys of the district of Ten-
nessee, by a law passed the twenty-eighth day of
February, one thousi^nd seven hundred and ninety-
nine, and shall receive such compensatioo, emola-
ments. and fees, as by law are or shall be allowed
to the district attorneys of the United States, re-
spectively : Provided, That the district auoroeys
of East and West Tennessee, now in office, shall
severally and respectively be attorneys for those
districts, within which they reside, until removed
by the President of the United States.
Sec. 21. And he U further enacted, That all
actions, suits, process, pleadings, and proceedtnes,
of what nature or kind soever, which shall be de-
pendi ng or existing in the sixth circuit of the United
States, within the circuit courts of the districts of
East and West Tennessee, shall be, aad hereby
are, continued over to the district courts estab-
lished by this act, in manner following, that is
to say : All such as shall on the first day of July
next be depending and undetermined, or shall then
have been commenced, and made returnable be-
fore the circuit court of East Tennessee, to the
next district court hereby directed to be holden
within and for the district of Bast Tennessee; all
such as shall be depending and undetermined.
or shall have been commenced and made re-
turnable before the circuit court of West Ten-
nessee, to the next district court hereby directed
to be nolden within and for the district of West
Tennessee ; and all the said suits shall be equally
regular and effectual, and shall be proceeded in in
the same manner as they could have been if the
law authorizing the establishment of the sixth cir-
cuit of the United States had not been repealed.
Sec. 22. And be it further en(icted, That the
next session of the district court for the district of
Maine shall be holden on the last Tuesday in
May next ; and that the session of the said court
heretofore holden on the third Tuesday of Jane,
annually, shall hereafter be holden, annually, on
the last Tuesday in May.
Sec 23. And be it further enacted, That all
writs and process which shall have been issued,
and all recognizances returnable, and all suits and
other proceedings which have been continued to
the said district court on the third Tuesday in
June next, shall be returned and held continued
to the said last Tuesday of May next.
Sec 24. And he itjyrtker enacted^ That the
chief judge of the district of Columbia shall hold
a district court of the United Slates, in and for the
said district, on the first Tuesday of April and on
the first Tuesday of October in every year ; which
court shall have and exercise, within the said dis-
trict, the same powers and jurisdiction which are
by law vested in the district courts of the United
States.
Sec 25. And he it further enacted, That in all
suits in equity, it shall b^ in the discretion of the
court, upon tne request of either party, to order
the testimony of the witnesses therein to be taken
by depositions ; which depositions shall be taken in
conformitv to the regulations prescribed by law foe
courts of the highest original jurisdiction in equity,
in cases of a similar nature, in that State in which
the court of the United States may be holden:
Provided, however, That nothing herein contained
shall extend to the circuit courts which may U
1841
APPENDIX.
1342
Acta of Congresa,
holden ia those States in which testimony in
chancery is not taken by deposition.
Sec. 26. And he it further etmcied^ That there
shall be a clerk for the district court of Norfolk,
to be appointed by the judge thereof, which clerk
shall reside and keep the records of the said court
at Norfolk, aforesaid, and shall perform the same
duties, and be entitled to and receive the same fees
and emoluments, which are established by law
for the clerks of the district courts of the United
States.
Sec. 27. And be it further encLCted, That, from
and after the first day of Jul^r next, there shall be
holden, annually, in the district of Vermont, two
stated sessions of the district court, which shall
commence on the tenth day of October at Rut-
land, and on the seventh day of May at Windsor,
in each year; and when either of the said days shall
happen on a Sunday, the said court, hereby di-
rected to be holden on such day, shall be holden
on the day next thereafter.
Sec. 28. And be it further enacted^ That the
act, entitled " An act altering the time of holding
the district court in Vermont," and so much of the
second section of the act, entitled " An act giving
effect to the laws of the United States within the
State of Vermont,^' as provides for the holding
four sessions, annually, of the said district court
in said district, from and after the first day of July
next, be, and hereby are, repealed.
Sec. ^9. And be it further enactedj That the
clerk of the said district court shall not issue a
process to summon, or cauiie to be returned to any
session of the said district court, a grand jury,
unless by special order of the district judge, ana
at the request of the district attorney ; nor shall he
cause to be summoned or returned a petit jury to
such sessions of the said district court, in which
there shall appear to be no issue proper for the
trial by jurv, unless by special order of the jud^e,
as aforesaid. And it shall be the duty of the cir-
cuit court in the district of Vermont, at their stated
sessions, to give in charge to the grand juries all
crimes, ofiences, and misdemeanors, as are cogni-
zable, as well in the said district court as the said
circuit court; and such bills of indictment as shall
be found in the circuit court, and cognizable in the
said district court, shall, at the discretion of the
said circuit court, be transmitted by the clerk of
the said court, pursuant to the order of the said
circuit court, with all matters and things relating
thereto, to the district court next thereafter to be
loldea in said district, and the same proceedings
ihall be had thereon in said district court as though
>aid bill of indictment had originated and been
ibund in the said district court. And all recogni-
sances of witnesses, taken by any magistrate in
;aid district, for their appearance to testify in anv
^ase cognizable in either of the said courts, shall
)e to the circuit court next thereafter to be holden
n said district.
Sec. 30. And be it further enacted^ That, from
ind after the passing of this act, no special juries
(hall be returned by the clerks of any of the said
*ircuit courts; but that, in all cases in which it
ivas the duty of the said clerks to return special
uries before the passing of this act, it shall be the
duty of the marshal for the district where such
circuit court may be held to return special juries,
in the same manner and form, as, by the laws of
the respective States, the said clerks were required
to return the same.
Approved, April 29, 1802.
An Act making provicdon for the redemptioll of the
whole of the public debt of the United States.
Beit enacted^ ^c, That so much of the duties
on merchandise and tonnage as, together with the
moneys, other than surplusses of revenue, which
now constitute the sinking fund, or shall accrue to
it by virtue of any provisions heretofore made,
and together with the sums annually required to
discharge the annual interest and charges accru-
ing on the present debt of the United States, in-
cluding temporary loans heretofore obtained, and
also future loans which maybe made for reim-
bursing, or redeeming, any instalments, or parts
of the principal of the said debts, will amount to
an annual sum of seven millions three hundred
thousand dollars, be, and the same hereby is, year-
ly appropriated to the said fund; and the said
sums are hereby declared to be vested in the com-
missioners of the sinking fund, in the same man-
ner as the moneys heretofore appropriated to the
said fund, to be' applied by the said commissioners
to the payment of interest and charges, and to the
reimbursement or redemption of the principal of
the public debt, and shall be and continue appro-
priated until the whole of the present debt of the
United States, and the loans which may be made
for reimbursing or redeeming any parts or instal-
ments of the principal of the jsaid debt, shall be re-
imbursed and redeemed: Provided^ That after the
whole of the said debt, the old six per cent, stock,
the deferred stock, the seventeen hundred ana
ninety-six six per cent, stock, and three per cent,
slock, excepted, shall have been reimbursed or re-
deemed, any balance of the sums annually appro-
priated by this act, which may remain unexpended
at the end of six months next succeeding the end
of the calendar year to which such annual appro-
priation refers, shall be carried to the surplus fund,
and cease to be vested by virtue of this act in the
comipissionersof the sinking fund, and the appro-
priation, so far as relates to such unexpended
balance^ shall cease and determine.
Sec. 2. And be U further enacted^ That it shall
be the duty of the Secretary of the Treasury an-
nually, and in each year, to cause to be paid, to
the commissioners of the sinking fund tne said
sum of seven millions three hundred thousand
dollars, in such payments, and at such times, in
each year, as the situation of the Treasury will
permit: Provided^ That all such payments as
may be necessary to enable the said commission-
ers to discharge or reimburse any demands against
the United States, on account of the principal or
interest of the deot, which shall be actually du&
in conformity to the engagements of the saia
States, shall be made at such time and times in
each year, as will enable the said commissioners
1343
APPENDIX.
1344
Acts of Congress,
faithful!/ and punctually to comply with such
engagement.
Sec. 3. And be it further enacted, That all re-
imbursements of the capital or principal of the
present debt of the United States, including future
loans which may be made for reimbursing or re-
deeming any instalments, or parts of the same, and
all payments on account of the interest and charges
acci^uii:\g upon the said debt, shall be made under
the superintendence of the commissioners of the
sinking fund. And it shall be the duty of the said
commissioners to cause to be applied and paid out
of the said fund, yearly and every year, at the
Treasury of the United States, the several and re-
spective sums following, to wit: first, such sum
and sums as, by virtue of any act or acts, they have
heretofore been directed to apply and to pay ; sec-
ondly, such sum and sums as may be annually
wanted to discharge the annual interest ana
charges accruing on any other part of the present
debt of the United States, including the interest
and charges which may accrue on future loans
which may be made for reimbursing or redeeming
any instalments or parts of the principal of the
said debt ; thirdly, such sum and sums as may an-
nually be required to discharge any instalment or
part of the principal of the present debt of the
United States, and of any future loans which may
be made for reimbursing or discharging the same,
which shall be ac^ally due and demandable, and
which shall not, by virtue of this or any other act,
be renewed or prolonged, or reimbursed, out of the
proceeds of a new loan : and. also, it shall be the
duty of the said commissioners to cause to be ap-
plied the surplus of such fund as may at any time
exist, after satisfying the purposes aforesaid, to-
wards the further and final redemption, by pajr-
ment or purchase, of the present debt of the Uni-
ted States, including loans for the reimbursement
thereof, temporary loans heretofore obtained from
the Bank of the United States, and those demands
against the United States, under any treaty or
convention with a foreign Power, for the payment
of Which the faith of the United States has been,
or may hereafter be, pledged by Congress : Pro-
vided, however, That the whole or any part of
such demands, arising under a treaty or conven-
tion with a foreign Power, and of such temporary
loans, may, at any time, be reimbursed, either^out
of the sinking fund, or, if the situation of the Trea-
sury will permit, out of any other moneys which
have been, or may- hereafter be, appropriated to
that purpose.
Sec. 4. And he it further enacted, That the
commissioners of the sinking fund be, and they
hereby are, empowered, with the approbation of
the President of the United States, to borrow on
the credit of the United States, either in America,
or abroad, by obtaining a prolongation of former
loans, or otherwise, the sums requisite for the pay-
ment of the instalments or parts of principal of
the Dutch debt, which become due in the years
one thousand eight hundred and three, one thou-
sand eiffht hundred and four, one thousand eight
hundred and five, and one thousand eight hun-
dred and six i and that a sum equivalent to that
to be thus borrowed, or reloaned, shall be laid
out by the commissioners of the sinking fund, in
the 'purchase or redemption of such parts of the
present debt of the United States, and other de-
mands against them, as the commissioners of the
sinking fund may lawfully pay, agreeably to the
provisions herein before made, and as the said
commissioners shall, in their judgment, deem most
expedient, so as to effect the payment, annually,
of seven millions three hundred thousand dollars
towards the final discharge of the whole debt
agreeably to such provision : Provided, That the
United States shall have a right to reimburse any
loan thus made within six years after the date of
the same, and that the rate of interest thereupon
shall not exceed five per centum per annum, nor
the charges thereon the rate of five per centum
on the capital borrowed : And provided^ always,
That the power herein given shall not be constru-
ed to repeal, diminish, or afiect the power given
to the said commissioners, by the tenth section of
the act, entitled *'An act making further provision
for the support of public credit, and for the re-
demption of the public debt, to borrow certain
sums for the discharge of the instalments jf the
capital, or principal, of the public debt, in the
manner and on the terms prescribed by the said
section ; nor the power given to them by an act,
entitled ^'An act making provision for the pay-
ment of certain debts of the United States,'^ to
borrow certain sums and to sell the shares of the
Bank of the United States, belonging to the Uni-
ted States, in the manner, on the terms, and for
the purposes authorized by the said act : And pro-
vided, further. That nothing herein contained
shall De construed to revive any act, or part of an
act, authorizing the loan of money, and which
hath heretofore expired.
Sec. 5. And be U further enacted. That, for the
purpose of more effectually securing the reim-
bursement of the Dutch debt, the commissioners
of the sinkins^ fund may and they hereby are em-
powered, with the approbation of the President of
the United States, to contract either with the
Bank of the United States, or with any other
public institution, or with individuals, for the pay-
ment, in Holland, of the whole, or any pact, ot the
principal of the said Dutch debt, and of^the inter-
est and charges accruing on the same, as the said
demands become due, on such terms as the :^id
commissioners shall think most advantageous to
the United States; or to employ^ either the said
bank, or any other public institution, or any indi-
vidual or individuals, as agent or agents, for the
purpose of purchasing bills of exchange, or any
other kind of remittances, for the purpose of db-
charging the interest and principal of said debt ;
and to allow to such agent or agents a compensa-
tion not exceeding one-fourth of one per cent., on
the remittance thus purchased or procured by
them under the direction of the said commission-
ers; and as much of the duties on tonnage and mer-
chandise as may be necessary fo( that purpose is
hereby appropriated towards paying the extra al-
lowance or commission resulting from such trans-
action, or transactions, and also to pay any defi-
1345
APPENDIX.
1346
Acts of Congress.
ciency arising from any loss incurred upon any
remittance purchased or procured under the direc-
tion of the said commissioners, for the purpose of
discharging the principal and interest of the said
debt.
Sec. 6. And be it further enacted, That the com-
missioners of the sinking fund be, and they here-
by are, empowered, with the approbation of the
President of the United States, to employ, if they
shall deem it necessary, an asent in Europe for
the purpose of transacting any Dusiness relative to
the discnnrffe of the Dutch debt, and to the loans
authorized by this, or any other act, for the pur-
pose of discharging the same, and also to allow
him a compensation not exceeding three thousand
dolbrs a year, to be paid out of any moneys in the
Treasury not otherwise appropriated.
Sec 7. And he it further enacted. That nothinc
in this act contained shall be construed to repeal,
alter, or affect any of the provisions of any former
act pledging the taith of the United States to the
payment of the interest, or principal of the public
debt ; and that all such payments shall continue
to be made at the time heretofore prescribed by
law ; and the surplus only of the appropriations
made by this act, beyond the sums payable by vir-
tue of the provisions of any former act, shall be
applicable to the reimbursement, redemption, or
purchase of the public debt in the manner provided
by this act.
Sec. 8. And be it further enacted. That all the
restrictions anc] regulations heretofore established
by law, for regulating the execution of the duties
enjoined upon the commissioners of the sinking
fund, shall apply to and be in as full force for the
execution of tne analogous duties enioined by this
act, as if they were herein particularly repeated
and re-enacted : Provided, however, That the par-
ticular annual account of all sales of stock, of
loans, and of payments, by them made, shall, here-
after, be laid before Congress on the first week of
February in each year ; and so much of any former
act as directed such account to be laid before
Congress within fourteen days after their meeting,
is hereby repealed.
Approved, April 29, 1802.
An Act for the relief of the widows and orphans of
certain persons who have died in the Naval service
of the United States.
Be it enacted, fc, That the widows, if any
such there be, and, in case there be no widow, the
child or children of the officers, seamen, and ma-
rines, who were in the service of the United
States, and lost in the ship Insurgent and brigan-
tine Pickering, shall be entitled to, and receive,
out of any money in the Treasury not otherwise
appropriated^ a sum equal to four months' pay of
their respective husbands or fathers, as aforesaid.
Approved, April 29, 1802.
An act to regulate and ^x the compensation of the offi-
cers of the Senate and House of Representatives.
Be it enacted, <^c., That the officers of the Sen-
ate and House of Representatives, hereinafter
7th Con. " "
mentioned, shall be, and hereby are, entitled to re-
ceive, inlieuof their compensations as fixed by law,
the following sums ; that is to say : The Secretary
of the Senate, and Clerk of the House of Repre-
sentatives, two thousand dollars each ; their prin-
cipal clerks, one thousand three hundred dollars
each ; and each of their engrossing clerks, one
thousand dollars per annum.
Sec 2. And be it further enacted. That the Ser-
geant-at-Arms of the Senate, who also performs
the duty of Doorkeeper, and ^ the Sergeanl-at*
Arms of the House ot Representatives shall, be.
and hereby are, entitled to receive eight hundrea
dollars per annum, each.
Sec. 3. And be it further enacted, That the
Doorkeeper of the House of Representatives shall
be, and hereby is. entitled to receive five hundred
dollars per annuin, and two dollars per day, during
each session of Congress ; and the Assistant Door-
keeper of the Senate and House of Representa-
tives, four hundred and fifty dollars per annum,
each; and two dollars each, per day, during each
session of Congress.
Sec. 4. And be it further enacted. That the com-
pensations to the Secretary of tne Senate and
Clerk of the House of Representatives, and to
their clerks, and to the other officers herein named,
shall commence with the present year.
Approved, April 29, 1802.
An Act supplementary to an act, entitled *'An act for
the encouragement of learning, by securing the copies
of maps, chartSi and books, to the authors and pro-
prietors of such copies, during the time therein men-
tioned," and extending the benefits thereof to the art
of designing, engraving, and etching historical and
other prints.
Be it enacted, ^c, That every person who shall,
from and after the first day of January next, claim
to be the author or proprietor of any maps, charts,
book or books, and shall thereafter seek to obtain
a copyright of the same, agreeable to the rules pre-
scribed by law, before ne shall be entitled to the
benefit of the act, entitled "An act for for the en-
couragement of learning, by securing the copies of
maps, charts, and books, to the authors and propri-
etors of such copies, during the time therein men-
tioned," he shall, in addition to the requisites en-
joined in the third and fourth sections of said act,
if a book or books, give information by causing
the copy of the record, which, by said act, he is
required to publish in one or more of the news-
papers, to be inserted at full length in the title page
or iu the page immediately following the title of
every such book or books ; and if a map or chart,
shall cause the following words to be impressea
on the face thereof, viz : ^' Entered according to
theact of Congress, the day of .18— ,[herc
insert the date when the same was deposited in
the office,] by A. B. of the State of . [here In-
sert the author's or proprietor's name, and the State
in which he resides.]
Sec. 2. And be it farther enacted, That, from
and after the first day of January next, every person
being a citizen of the United States, or resident
within the same, who shall invent and design, en-
1347
APPENDIX.
1348
Acts 2f Congresg,
^ave, etch or work, or, from his own works and
inrentions, shall cause to be designed and engraved,
etched or worked, any historical or other print or
prints, shall have the sole right and liberty of print-
ing, reprinting, publishing, and vending such print
or prints, for the term of fourteen years from the
recording the title thereof in the clerk's office, as
prescribed by law for maps, charts, book or books:
Provided^ he shall perform all the requisites in
relation to such print or prints, as are directed in
relation to maps^ qharts, book or books^ in the third
and fourth sections of the act to which this is a
rapplement, and shall moreover cause the same
entry to be truly engraved on such plate, with the
name of the proprietor, and printed on every such
print or prints as is hereinbefore required to be
made on maps or charts.
Seo. 3. And be it further enacted, That if any
printseller or other person whatsoever, from and
after the said first day of January next, within the
time limited by this act, shall engrave, etch, or
work, as aforesaid, or in any other manner copy
or sell, or cause to be engraved, etched, copied or
sold, in the whole or in part, by varying, adding to.
or diminishing from tne main design, or shall
print, reprint, or import for sale, or cause to be
.printed, reprinted, or imported for sale, any such
print or prints, or vmy parts thereof, without the
consent of the proprietor or proprietors thereof,
first had and obtained, in writing, signed by him
or them respectively, in the presence of two or
more credible witnesses; or, knowing the same
to be so printed or reprinted, without the consent
of the proprietor or proprietors, shall publish, sell,
or expose to sale or otherwise, or in any other man-
ner dispose of any such print or prmts, without
such consent first had and obtained, as aforesaid,
then suchofiender or ofiendersshall forfeit the plate
or plates on which such print or prints are or shall
be copied, and all and every sheet or sheets (being
part of, or whereon.such print or prints are or shaU
oe copied or printed) to the proprietor or proprietors
of such original print or prints, who snail forth-
with destroy the same; and further, that every such
offender or offenders shall forfeit one dollar for
every print which shall be found in his, her, or their
custody ; either printed, published; or exposed to
sale, or otherwise disposed of, contrary to the true
intent and meaning of this act ; the one moiety
thereof to any person who shall sue for the same,
and the other moiety thereof to and for the use of
the United States, to be recovered in any court
having competent jurisdiction thereof.
Sec. 4. And he it further enacted^ That if any
person or persons, from and after the passing of
this act. shall print or publish any map, chart,
book or books, print or prints, who have not legal-
ly acquired the copyright of such map, chart, book
or books, print or prmts, and shall, contrary to
the true intent and meaning of this act, insert
therein, or impress thereon that the same has been
entered according to act of Congrsss, or words
purporting the same, or purporting that the copy-
right thereof has been acquired ; every person so
offending, shall forfeit and pay the sum of one
hundred dollars, one moiety thereof to the person I
who shall sue for the same, and the other moiety
thereof to, and for the use of the United States,
to be recovered by action of debt in any court of
record in the United States having cognizance
thereof. Provided cdwaya, That in every case for
forfeitures hereinbefore given, the action be c(»n-
menced within two years from the time the cause
of action may have arisen.
Approved^ April 29, 1802.
An Act to amend "An act to estaUiah the conqm-
sation of the officers employed in the collection of
the duties, on imports and tonnage ; and for other
purposes."
Be it enacted^ fc, That, from and aAer the thir-
tieth day of June, in the present year, there shall
be paid, annually, to the collector of the customs
for the district of Richmond, in addition to the
fees and emoluments otherwise allowed by law,
the sum of two hundred and fifty dollars.
Sec. 2. And be it further enacted^ That, from
from and after the said thirtieth day of June, the
salary heretofore allowed by law to the collector
of the customs for the district of Petersharg be,
and the same hereby is, discontinued.
Sec. 3. And be it further enactod, That, from
and after the said thirtieth day of June, whenever
the annual emoluments of any collector of the
customs, after deducting therefrom the expend-
itures incident to his office, shall amount to
more than five thousand dollars \ or those of a
naval officer, after a like deduction, to more than
three thousand five hundred dollars ; or those of
a surveyor, after a like deduction, to more than
three thousand dollars, the surplus shall be ac-
counted for, and be paid by them, respectively.
to the Treasury of the United States. Protided
cdwaysy That nothing in this act contained shall
be construed to extend to fines, forfeitures, and
penalties, under the revenue laws of the United
States.
Approved, April 30, 1802.
An
re
Act to suspend, in part, the act, entitled **An act
Dgulating foreign coins ; and fbr other purposes."
Be it enacted^ <^c.. That so much of the act
entitled, ^^An act for regulating foreign coins;
and for other purposes," as is contained within the
second section tnereof, be, and the same is here-
by suspended, for and during the space of three
years, trom and afler the end of the present session
of Congress.
Approved, April 30, 1802.
An Act to revive and continue in force an act, enti<
tied "An Act for eetablishing trading-houses with the
Indian tribes."
Be it enacted, f>c.. That the act, entitled ''Ad
act for establishing trading-houses with the Indian
tribes," approved April 18, 1796, shall be, and the
same is hereby, revived and continued in force
until the fourth day of March next, and no longv.
Approved. April 30, 1802.
1349
APPENDIX.
1350
Acts of Congress.
An Act to enable the people of the eastern division of
the Terntory Northwest of the river Ohio to form a
constitation and State government, and for the ad-
mission of such State into the Union, on an equal
footing with the original States ; and for other pur-
poses.
Be it enacted, ^c, That the inhabitants of the
eastern division of the Territory Northwest of the
river Ohio, be, and they are hereby, authorized to
form for themselves a constitution and State gov-
ernment, and to assume such name as they shall
deem proper ; and the said State, when formed,
shall be admitted into the Union, upon the same
footing with the original States, in all respects
whatever.
Sec. 2. And be it farther enacted, That the said
State shall consist of all the territory included
within the following boundaries, to wit: bounded
on the east by the Pennsylvania line, on the south
by the Ohio river, to the mouth of the Great Miami
river, on the west by the line drawn due north
from the month of the Qreat Miami, aforesaid,
and on the north by an east and west line, drawn
through the southerly extreme of Lake Michigan,
runninc^ east after intersecting the due north line
aforesaid, from the mouth oi the Great Miami,
until it shsill intersect Lake Erie, or the territorial
line, and thence with the same through Lake Erie
to the Pennsylvania line^ aforesaid: Provided,
That Congress shall be at liberty at any time here-
after, either to attach all the territory lying east
of the line to be drawn due north from the mouth
of the Mia^mi, aforesaid, to the territorial line, aud
north of an east and west line drawn through the
southerly extreme of Lake Michigan, running
east as aforesaid to Lake Erie, to the aforesaid
State, or dispose of it otherwise, in conformity to
the fifth a.rticle of compact between the original
States, aad the people and States to be formed in
the Territory Northwest of the river Ohio..
Sec. 3. And be it farther enacted, That all that
part of the Territory of the United States North-
west of the river Ohio, heretofore included in the
eastern division of said Territory, and not included
within the boundary herein prescribed for the said
State, is hereby attached to, and made a part of
the Indiana Territory, from and after the forma-
tion of the said State, subject nevertheless to be
hereafter disposed of by Congress, according to
the right reserved in the fifth article of the ordi-
nance aforesaid, and the inhabitants therein shall
be entitled to the same privileges and immunities,
and subject to the same rules and regulations, in
all respects whatever, with all other citizens resid-
ing within the Indiana Territory.
Sec. 4. And be it farther enacted. That all
male citizens of the United States who shall have
arrived at full age, and resided within the said
Territory at least one year previous to the day of
election, and shall have paid a Territorial or county
tax, and all persons having in other respects, the
legal qualifications to vote for representatives in
the General Assembly of the Territory, be, and
they are hereby, authorized to choose representa-
ti ves to form a convention, who shall be apportioned
amongst the several counties within tne eastern
division aforesaid, in a ratio of one representative
to every twelve hundred inhabitants of each coun-
ty, according to the enumeration taken under the
authority of the United States, as near as may be,
that is to say : from the county of Trumbull, two
representatives; from the county of Jefferson,
seven representatives, two of the seven to be
elected within what is now known by the county
of Belmont, taken from Jefierson and Washington,
counties; from the county of Washington, four
representatives ; from the county of Ross, seven
representatives, two of the seven to be elected
in what is now known by Fairfield county, taken
from Ross and Washington counties; from the
county of Adams, three representatives ; from the
county of Hamilton, twelve representatives, two
of the twelve to be elected in wnat is now known
by Clermont county, taken entirely from Hamil-
ton county; and the elections for the representa-
tives aforesaid, shall take place on the second
Tuesday of October next, the time fixed by a law
of the Territory, entitled, ^^An aci to ascertain the*
number of free male inhabitants of the age of
t.wenty-one, in the Territory of the United States
Northwest of the river Ohio, and to regulate the
elections of representatives for the same," for
electing representatives to the General Assembly,
and shall be held and conducted in the same man-
ner as is provided by the aforesaid act, except that
the qualifications of electors shall be as herein
specified.
Sec. 5. And be it farther enacted, That the
members of the convention, thus duly elected, be,
and they are hereby, authorized to meet at Cnili-
cothe on the first Monday in November next;
which convention, when met, shall first determine,
by a majority of the whole number elected, whe-
ther it be or be not expedient at that time to form
a constitution and State government for the peo-
ple, within the said Territory, and if it be deter-
mined to be expedient, the convention shall be, and
hereby are, authorized to form a constitution and
State government, or, if it be deemed more ex-
pedient, the said convention shall provide by ordi-
nance for electing representatives to form a con-
stitution or frame of government; which said re-
presentatives shall be chosen in such manner, and
in such proportion, and shall meet at such time
and place, as shall be prescribed by the said ordi-
nance ; and shall form for the people of the said
State a constitution and State government: Pro-
vided, The same shall be republican, and not repug-
nant (o the ordinance of the thirteenth of July,
one thousand seven hundred and eighty-seven,
between the original States and the people ana
States of the Territory Northwest ot the river
Ohio.
Sec. 6. And be %t farther enacted, That, until
the next general census shall be taken, the said
State shall be entitled to one representative in the
House of Representatives of the United States.
Sec. 7. And be it farther enacted, That the fol-
lowing propositions be, and the same are hereby,
offered to the convention of the eastern* State or
the said Territory, when formed^ for their free ac-
ceptance or rejection, which, if accepted by th«
1351
APPENDIX.
135
0
Acts of Congress.
coDvention, shall be obligatory apon the United
States :
First^ That the section number sixteen, in
every township^ and where such section has been
sold, granted, or disposed of, other lands equivalent
thereto, and most contiguous to the same, shall be
granted to the inhabitants of such township, for
the use of schools.
Second^ That the six miles reservation, includ-
ing the salt springs, commonly called the Sciota
^alt springs, the salt springs near the Muskingum
river, and in the military tract, with the sections
of land which include the same, shall be granted
to the said State for the use of tne people thereof,
the same to be used under such terms, and condi-
tions, and regulations, as the Legislature of the
said State shall direct : Provided^ The said Le-
gislature shall never sell nor lease the same for a
lonfi^er period than ten years.
Third, That one-twentieth part of the net pro-
ceeds of the lands lying within the said State,
. sold by Congress, from and after the thirtieth day
of June next, after deducting all expenses incident
to the same, shall be applied to the laying out and
making public roads, leading from tne navigable
waters emptying into the Atlantic, to the Ohio,
to the^aid Stat6, and through the same, such roads
to be laid out under the authority of Congress,
with the consent of the several States through
which the road shall pass : Provided always.
That the three foregoing propositions herein of-
fered, are on the conditions that the convention
of the said State shall provide, by an ordinance
irrevocable, without the consent of the United
States, that every and each tract of land sold by
Congress, from and after the thirtieth day of June
next, shall be and remain exempt from any tax
laid by order or under authority of the State, whe-
ther tor State, county, township, or any other
purpose whatever, for the term oi five years from
and after the day of sale.
Approved, April 30, 1802.
An Act to abolish the Board of Commissioners in the
City of Washington, and for other purposes.
Be it enacted^ ^., That, from and after the first
day of June next, the ofiices of the commissioners
appointed in virtue of an act passed on the six-
teenth day of July, in the year seventeen hundred
and ninety, entitled -'An act to establish the tem-
porary and permanent seat of the Government of
the United States," shall cease and determine;
and the said commissioners shall deliver up unto
such person as the President shall appoint, in vir-
tue of this act, all plans, draughts, books, records,
accounts, deeds, grants, contracts,' bonds, obliga-
tions, securities, and other evidences of debt in
their possession, which relate to the city of Wash-
ington, and the afiairs heretofore under their su-
perintendence or care.
Sec. 2. And he it further enacted^ That the af-
fairs of the city of Washington, which have here-
tofore been under the care and superintendence of
the said commissioners, shall hereafter be under
the direction of a superintendent, to be appointed
by, and be under the control of, the President of
the United States; and the said superintendfot
is hereby invested with all powers, and shall here-
after perform all duties which the said commis-
sioners are now vested with, or are required to
perform by, or in virtue of, any act of Congress,
or any act of the General Assembly of MaiylaQd.
or any deed or deeds of trust from the origiaai
proprietors of the lots in the said city, or in any
other manner whatsoever.
Sec. 3. And he U further enax^ted^ That the said
commissioners shall forthwith settle, with theac-
counting officers of the Treasury, tbeic accounts
for all moneys received and expended by them in
their capacity as commissioners, and shall imme-
diately thereafter pay to the said superintendent
any balance which may be found against them
upon such settlement.
Sec. 4. And he it Jurther enacted^ That the
said superintendent shall pay all the debts hereto-
fore contracted by the commissioners, in their ca-
pacity as such, the payments of which are not
nereinafter specially provided for, out of any mon-
eys received by him arising out of the city funds.
Sec. 5. And he it further enacted^ That the said
superintendent shall, under the direction of the
President of the United States, sell so many of
those lots in the city of Washington whi«h are
pledged for the repayment of a loan of two hun-
dred thousand dollars, made by the State of Ma-
ryland, in the years one thousand seven hundred
and ninety-six and one thousand seven hundred
and ninety-seven, to the commissioners, for the
use of the said city, as may be sufficient to pay the
interest already accrued on the said loan, and the
interest and instalments thereof, as they may re^
spectively become due: Pravided, That if, in the
opinion of the President of the United Slates, the
sale of a sufficient number of the said lots, to meet
the objects aforesaid, cannot be made without an
unwarrantable sacrifice of the property, then so
much money as may be necessary to provide for
the deficiency is hereby appropriated, and shall
be paid out of any money in the Treasury of the
United States not otherwise appropriated.
Sec. 6. And he it Jurther enacted^ That the
said superintendent shall, prior to the first day oC
November next, sell, unaer the directions of the
President of the United States, all lots in the said
city, which were sold antecedent to the sixth day
of May, in the year one thousand seven hundred
and ninety-six, and which the said commissioners
are authorized by law to resell, in consequence d*
a failure on the part of the purchasers to complj
with their contracts; and the moneys arisms
thereupon shall be applied, on or before the first
day of Wovember next, to tne payment of the sum
of fifty thousand dollars, and the interest therecn,
to the State of Maryland, which said sum was
formerly loaned by the said S^ate to the commis-
sioners for the use of the city of Washington:
Promdedy That, if a sufficient sum to meet the
obiects last aforesaid, shall not be produced by tbe
sale of the whole ot the lots aforesaid, then so
much money as may be necessary to provide ics
the deficiency is hereby appropriated, and shall
1353
APPENDIX.
1354
Acts of Congress*
be paid out of any money in the Treasury of
the United States, not otherwise appropriated.
Sec. 7. And be it further enacted. That, after
the debts already contracted by the commissioners
shall have been discharg;ed, all moneys advanced
out of the Treasury in pursuance of this act, shall
be reimbursed by the superintendent, by paying
into the Treasury all moneys arising from the city
funds, until the whole sum advanced, with the
interest thereon, shall be repaid.
Sec. 8. And be it furtner enacted. That so
much of the act, entitled, ^^An act to establish the
temporary and permanent seat of Gorernment of
the United States," passed on the sixteenth day of
July, in the year seventeen hundred and ninety,
as relates to the appointment of commissioners
shall be, and the same is hereby, repealed.
Sec. 9. And be it further enacted^ That it shall
and may be lawful to open books in the city of
Washington, for receiving and entering subscrip-
tions for opening the canal to communicate from
the Potomac river to the Eastern Branch thereof,
through the city of Washington, under the man-
agement of Thomas Tihgey. Daniel Carroll of
Duddington. Thomas Law, and Daniel Carroll
Brent, whicn subscriptions shall be made person-
ally, or by power of attorney ; the said books shall
be opened for receiving subscription^, and con-
tinue open, until the sum of eighty thousand dol-
lars shall be filled up, in shares of one hundred
dollars each ; and that each person shall, at the
time of subscribing, pay dowQ ten dollars, being
one-tenth of each share ; and after fourteen days
previous notice, by advertisement, there shall be a
meeting of the subscribers, and they are hereby
declared to be incorporated into a company, by
the name of the "Washington Canal Company,'
and may sue and be sued, as such, and make all
necessary by-laws and regulations for the proper
management of the business thereof: And such
of the subscribers as shall be present at the said
meeting, or a majority of them, are hereby em-
powered and required to electa president and four
directors, for conducting the said undertaking, and
managing the said company's business, for and
during such lime, not exceedinp; three years, as
the said subscribers. Or a majority of them, shall
think fit. Each member shall be allowed one vote
for every share, by him or her held at the time in
the said company ; and any proprietor, by a writ-
ing under his or her hand, executed in presence
of two witnesses, may depute any other member
or proprietor to vote and act as proxy for him or
her, at any general meeting.
Sec. 10. And be it farmer enacted. That the
shares in the said company shall be deemed per-
sonal, and not real property, and transferable in
such manner as the company shall direct.
Sec. 11. And be it further enacted, That the
president and directors so elected, and their suc-
cesssors, or a majority of them, shall have full
power and authority to agree with any person or
persons, on behalf of the said company, to cut
such canals, erect such locks, and perform such
other works as they shall judge necessary for open-
iBQ the canal aforesaid, and the forks thereof;
and out of the moneys arising from the subscript
tions, wharfage, and tolls, to pay for the same, and
to repair and improve the said canal, locks, and
other works necessary thereto, and to defray all
incidental charges, and also to appoint a treasurer,
clerk, and such other officers, toll ^therers, man-
agers and servants, as they shall judge requisite,
and to settle their respective wages.
Sec. 12. And be it further enacted. That the
treasurer of the company shall give oond. with
such penalty and such security as the said pres-
ident and directors, or a majority of them, shall
direct.
Sec. 13. And be it further enacted, That the
said president and directors, so elected, and their
successors, or a majority of them assembled, shall
have full power and authority to demand and re-
ceive of the proprietors, the remaining nine-tenths
of the shares, from time to time, as they may be
required by previous advertisement, at least one
month in the Washington, Georgetown, and Alex-
andria gazettes; and if any of the said proprietors
shall refuse or neglect to pay their proportions
within one month after the same so ordered and
advertised, as aforesaid, the said shares of default-
ers shall be forfeited.
Sec. 14. And be it further enacted, That the
said president and directors, so elected, and their
successors, or a majority of them, shall not begin
to collect wharfage or tolls, until the canal is made
practicable for boats and scows to pass through the
same, from the Potomac to the Eastern Branch.
Sec. 15. And be it further enacted. That every
president and director, before he acts as such,
shall take an oath or affirmation for the faithful
discharge of his office.
Sec. 16. And be it further enacted, That there
shall be a general meeting of the proprietors on
the first Monday in June, and the first Monday in
December, every year, in the city of Washington ;
to which meeting the president and directors shall
make a report, and render distinct and just ac-
counts of all their proceedings, and, on finding
them fairly and justly stated, the proprietors,
then present, or a majority of them, shall give a
certificate thereof; and at such half yearly general
meetings, after leaving in the hands of the treasurer
such sum as shall be judged necessary for repairs^
improvements, or contingent charges, an equal
dividend of all the net profits arising from the
wharfage and tolls hereby grantedj shall be or-
dered and made, to and among all the proprietors
of. the said company, in proportion to their ser-
eral shares.
Sec. 17. Andbeit further enacted, That for and
in consideration of tne expenses the said proprie-
tors shall incur, not only m. cutting canals, but in
erecting locks, and in maintaining and keeping
the same in repair, and temporary enlargement
and improvement of the same, that, for the space
of fifty years, when the act shall cease on repay-
ment of the principal of the sums expended, the
company is hereby authorized to collect the same
rates of wharfage, on all articles and materials
landed on each side of the canal, as are now le-
gally received at the wharves at Georgetown.
1355
APPENDIX.
1356
Acts of Congress*
Aad it shall and may be lawful for the said presi-
dent and directors, for fifty years, and as much
longer as their principal sums expended remain
unpaid, to demand and to receive, at the most con-
venient place, for all copa modi ties carried through
a lock or locks of the canal, a toll not exceeding
half a dollar on each loaded boat, and a quarter
of a dollar on each loaded scow ; but no toll to
be charged returning. But when the wharfage
shall produce the annual interest of eight per cent,
on the sums expended by the president and di-
rectors, exclusive of the tolls, then the tolls shall
cease, and the canal, and forks thereof, shall be
entirely free for passage ; and when the wharfage
shall exceed the annual interest of twelve per
cent., then the president and directors shall ap-
propriate one-half of th& surplus to such public
purposes as Congr^s may direct, or reserve the
same as a fund to pay off the principal : Provid-
ed^ cUwaySj That all public property shall pass
free of toll and wharfage.
Sec. 18. Provided, nevertheless, and he it fur-
ther enacted. That in case the said Washington
Canal Company, created by this act, shall not,
within the term of five years, complete said canal
in such manner as to admit boats drawing three
feet of water to pass through the whole extent of
said canal, that the said canal shall revert to the
United States, and all right and authority hereby
granted to the said company shall cease and de-
termine.
Approved, May 1, 1803.
An Act to empower John James Dufour, and his asso-
ciates, to purchase certain lands.
Be it enacted, f c.. That, to encourage the in-
troduction and to promote the culture of the vine
within the Territory of the United States North-
west of ihe river Ohio, it shall be lawful for John
James Dufour, and his associates^ to purchase any
quantity not exceeding four sections of the lands
of the United States, lying between the Great Mi-
ami river and the Indian boundary line, at the
rate of two dollars per acre, payable without in-
terest, on or before the first day of January, one
thousand eight hundred and fourteen.
, Sec. 2. And be it further enacted^ That it shall
be the duty of the register of the land office, es-
tablished at Cincinnati, to receive and to enter on
his entry book, the applications of the said Du-
four, and his associates^ for any unappropriated
sections, with the adjoinmg fractions, if any, not to
exceed in the whole four sections, and lying with-
in the district aforesaid : stating in each entry the
date of application and the number of the section or
fraction, township, and range applied for; and it
shall also be the duty of the said register to deliver
to the said Dufour, and his associates, a copy of
each entry thus made ; also a copy of the descrip-
tion or field notes, and of the plat of each tract,
with a certificate stating that the same has been
purchased under the authority of this act, at the
rate of two dollars per acre, payable, without in-
terest, on or before the first day of January, one
* thousand eight hundred and fourteen.
Sec 3. And be it further enacted, That pay-
ment for said land may be made at the Treasury
of the United States, or to the receiver of the
land office at Cincinnati, either in specie, or in
the evidences of the public debt of the United
States, at the rates prescribed by an act, enutied
"An act to authorize the receipt of evideoces of
the public debt in payment for lands of the Uni-
ted States," and a discount at the rate of six per
cent, a year shall be allowed on any payments
which snail be made before the same shall be-
come due.
Sec. 4. And be it further enacted, That on pro-
ducing to the Secretary of the Treasury copies of
the entries aforesaid, and of the plats of the tracts
applied for, also the certificate of the register of
the land office established at Cincinnati, that the
same have been purchased in conformity to the
provisions of this act, the President of the United
States shall be, and he hereby is, authorized
and empowered to issue letters patent in the
usual form, unto the said Dufour, nis associates,
and their neirs^ for the said lands ; with condi-
tion expressed m the said letters patent, that^ on
failure to pay the purchase-money when the same
shall become due, the lands therein described,
with the improvements thereon, shall he deemed
forfeited, and shall revest in the United States.
Approved, May 1, 1802.
An Act making an appropriation for the support of
the Navy of the United States, for the year one thoa-
sand eight hundred*and two.
Be it enacted, f c, That the following soms,
including any sum which may have been, and
might be, expended during the present year, by
virtue of any former appropriation, be. and the
same are hereby, respectively appropriated, to de-
fray the expenses of the Navy of the United
States during the year one thousand eight hun-
dred and two ; that is to say :
For the pay and subsistence of the ofiicers, the
pay of the seamen, provisions and repairs, five
hundred and eight thousand two hundred and
twenty-six dollars.
For medicines, instruments, and hospital stores*
ten thousand dollars.
For the purchase of ordnance and other milita-
ry stores, twenty thousand dollars.
For salaries' of superintendents of navy yards,
storekeepers and clerks, store rent, hire of labor-
ers, doc, twelve thousand dollars.
For the purchase and expense of transporta-
tion of timber, and other materials, including ord-
nance for the seventy-four gun ships, one hundred
and ninety thousand Qve hundred and seventy-
five dollars.
For the improvement of navy yards, docks, and
wharves, fifty thousand dollars.
For contingencies, ten thousand dollars.
For the pay and subsistence, including provis-
ions for those on shore, and forage for the staff of
the marine corps, seventy-one thousand seven
hundred and fifty-four dollars and forty cents*
For cloihing for the same, fifteen thousand five
hundred and nineteen dollars.
1357
APPENDrX.
1358
Acts of Congress.
For military stores for the same, one thousand
two hundred and twenty-four dollars and sixty
cents.
For the quartermaster's department, compris-
ing quarters for the officers, and barracks for the
men at different stations, fuel, stationery, camp
utensils, &c., seven thousand and sixty-one dollars.
For medicine, medical services, and hospital
stores, one thousand dollars.
For officers' travelling expenses, armorer's and
carpenter's bills, and other contingent expenses,
two thousand five hundred and fifty dollars.
Sec. 2. And be it Jurther enacted, That so much
of the said several sums of money, hereinbefore
specifically appropriated, and amounting together
to the sum of nine hundred thousand dollars, as
shall not have been expended by virtue of any
former appropriation, shall be paid, first, out of
any balance remaining unexpended of former ap*
propriations for the support of the navy; and sec-
ondly) out of any moneys in the Treasury of the
United States not otherwise appropriated by law.
Approved, May 1, 1802.
An Act to extend and continue in force the proviBions
of an act entitled *< An act giving a right of pre-emp-
tion to certain penons who have contracted with
John Cleves Symmes, or his associates, for lands
lying between the Miami rivers, in the Teiritory
North we-st of the Ohio; and for other purposes."
Be it enuictedj (fc, That the several provisions
of an act entitled "An act giving a right of pre-
emption to certain persons who have contracted
with John Cleves Symmes, or his associates, for
lands lying between the Miami rivers in the Ter-
ritory Northwest of the Ohio" shall be, and the
same are hereby, continued in force until the first
day of Nf arch next, subject to the modifications
contained in this act.
Sec. 2. And be it further enacted^ That the
provisions of the said act shall, and the same are,
nereby extended to all persons claiming lands
lying between the Miami rivers, and without the
limits of Ludlow's survey, by purchase or contract
made prior to the first day of January, one thou-
sand eight hundred, with John Cleves Symmes,
or his associates.
Sec. 3. And be it further enacted^ That every
person claiming lands as aforesaid, either within
or i^vithout the limits of Ludlow's survey, and
who have not obtained a certificate of the right of
pre-emption therefor, shall, on or before the first
day of November next, ^ive notice of the nature
and extent of his claim, m manner prescribed by
the second section of the said act. And the re-
ceiver of public moneys, and commissioners ap-
pointed under the fourth section of the said act,
shall meet at Cincinnati, on the second Monday
of November next, they having giving four weeks
previous notice of such meeting m a public news-
paper printed at Cincinnati, and shall then and
there proceed to hear and finally decide upon all
claims, of which notice has been given as afore-
said, and shall, in all matters relative thereto, gov-
ern themselves by the provisions of the said act.
Vacancies in the said board of commissioners may
be filled by the President of the United* States
alone. And the duties, powers, and emoluments,
of the said commissioners, receiver of public mon-
eys, and register of the land office at Cincinnati,
and surveyor general, as prescribed by the said
act, shall be, and the same are hereby, continued.
Sec. 4. And be it further enacted. That every
person who may have obtained, or wno shall here-
after obtain, as aforesaid, a certificate of a right of
pre-emption from the said commissioners, shall be
allowed until the first day of January next, to
make the first payment required for the lands de-
scribed in such certificate, and shall, in all other
respects relative thereto, conform to the several
provisions of the said act.
Sec. 5. And be it further enacted. That it shall
and may be lawful for the Secretary of the Treas*
ury to cause to be viewed, marked, and opened,
such roads within the Territory Northwest of the
Ohio, as in his opinion will serve to promote the
sales of the public lands in future: Provided,
That the whole sum to be expended on such roads
shall not exceed six thousand dollars, and that the
same shall be paid out of the moneys paid by pur-
chasers of public lands on account of surveying
expenses.
Sec. 6. And be it Jurther enacted. That all the
lands around Vincennes, on the Wabash, in the In-
diana Territory, the Indian title to which hath
been extinguisned, shall be surveyed and hiid off
in the manner prescribed by the third section of
an act, entitled "An act to amend an act entitled
''An act providing for the sales of lands of the
United States in the Territory Northwest of the
Ohio, and above the mouth of the Kentucky river,"
untler directions from the Secretary of the Treas-
ury, and by such person or persons as the President
of the United States alone shnll appoint for thatpur-
pose: Provided That the whole expense of sur-
veying and marking the lines shall not exceed four
dollars for every mile that actually shall be run,
surveyed, and marked. And two plats of lands
aforesaid shall be prepared by the person or per*
sons who may survey the same, who shall also
designate thereon the bounds of the lands of indi-
viduals held under reservations of the State of
Virginia, or under the laws of the United States:
one of the said plats shall be returned to the of-
fice of the Secretary of the Treasury, and the
other shall be deposited with the Secretary of the
Indiana Territory.
Sec. 7. And be it further enacted, That in all
cases where any section or fractional section of
land lying within the seven ranges of townships
has been sold prior to the tenth day of May, one
thousand eight hundred, under the authority of
the United States, the lines of such section or
fractional section, shall be run under the direction
of the Secretary of the Treasury, in the manner
most consistent with the supposed boundaries of
the same, -at the time of the sale ; anything in the
act of the tenth of May, one thousand eignt bun- ^
dred, to the contrary notwithstanding. And it
shall be lawful for the Secretary of the Treasury,
whenever lines thus run shall interfere with the
claim of a purchaser of public lands under the
1369
APPENDIX.
1360
Acta of Ckmgresa,
last medtioned act^ to permit sach purchaser, if he
shall desire it, at any time within six months, af-
ter such lines, thus in terferiog with his claim, shall
have heen run to withdraw his former application
and to apply in lieu thereof for any oiher vacant
section.
Approved, May 1, 1802.
] i
An act to provide for the establishment of certain dis-
tricts, and therein to amend an act, entitled, '* An act
to regulate the collection of duties on imports and ton-
nage ;'* and for other purposes.
Be it enacted^ fc, That, from and after the last
day of June next, a district shall be formed from
the district of Yorktown, in Virginia, to be called
the district of East River, which shall comprehend
the waters, shores, harbors, and inlets of North
and East River, and Mobjack bay, and all other
navigable waters, shores, harbors, and inlets, with-
in the county of Matthews, in said State ; and it
shall be lawful for the President of the United
States to designate a proper place to be the port of
entry and delivery within the said district ; and to
appoint a collector and surveyor of the customs to
reside and keep their offices thereat, who shall be
entitled to receive, in addition to the fees and other
emoluments established by law, the annual salary
of two hundred dollars each.
Sec. 2. And he it further enacted. That, from
and after the said last day of June next, Bennei's
creek, within the district of Edenton, and State of
North Carolina, shall cease to be a port of delivery,
as heretofore established, and the office, authority,
and emoluments of the surveyor of said port, shall
also, from thenceforth, terminate and be discontin-
ued ; and a port of delivery, in lieu thereof, shall
be established on Salmon creek, within the district
aforesaid, at a place called Tombstone ; and a sur-
veyor of the customs shall be appointed to reside
and keep an office thereat, who shall be entitled to
receive for his services, in addition to the fees es-
tablished by law, the annual salary heretofore al-
lowed to the survey^or of Bennet's creek.
Sec. 3. And be it further enacted. That, from
and after the said last day of June next, a port of
delivery shall be established at the mouth of Slade's
creek, on the north side thereof, within the district
of Washington, and State of North Carolina, on a
certain tract of land, intended and designated for a
town, whereon William Parmley resides; and a
surveyor of the customs shall be appointed to re-
side and keep an office thereat, who shall be enti-
tled to receive for his services, in addition to the
fees established by law, an annual salary of one
hundred and fifty dollars.
Sec. 4. And be it further enacted^ That, in the
Territory of the United States Northwest of the
river Ohio, there shall, from and after the passing
of this act, be established a district, to be called
the district of Marietta, which shall include all the
waters, shores, and inlets of the river Ohio, on the
northern side, and the rivers, waters, and shores
connected therewith, above or to the eastward of,
and including the river Scioto, from the mouth
thereof, upwards, as far as the same may be nav-
igable; and a collector of the custonis shall be
appointed to reside and keep an office at the town
of Marietta, which shall be the sole port of entry
and delivery for the said district ; and the said col-
lector shall be entitled to receive for his services,
in addition to the fees and other emoluments es-
tablished by law, an annual salary of one hundred
and fifty dollars.
Sec. 5. And be it fitrther enacted. That it shall
be lawful for the President of the United States
to establish, when it shall appear to him to be
proper, in addition to the port of entry and deliv-
ery already established on the Mississippi, sooth
of the State of Tennessee, one other port of entry
and delivery on the said river ; and to appoint a
collecter of the customs to reside and keep an
office thereat, and to appoint one or more survey-
ors to reside at such place or places as he may
think proper to designate as ports of delivery only ;
and the surveyor or surveyors thus appointed shall
be subject to the control and direction of the col-
lector within whose district he or they shall re^side.
Sec. 6. And be it further enacted. That, from
and after the passing of this act, no duty shall be
demanded or collected on merchandise, of the
growth, produce, or manufacture, of the United
States, or of any foreign country, transported
coastwise between the Atlantic ports of the Uni-
ted States, and the districts of the United States
on the river Mississippi, or any of its branches,
although landed at the port of New Orleans, on
its passage; provided the same would not be sub-
ject to duty, or liable to seizure, if transported
from one district of the United States, on the sea-
coast, to another: And provided^ likewise^ That
no debenture for a drawback shall have been
issued upon the export of such merchandise from
the Atlantic ports of the United States to any
foreign port or place. And to the end as well that
frauds on the revenue may be prevented, as that
the coasting vessels of the United States may be
permitted to participate in the said trade, the Sec-
retary of the Treasury, with the approbation of
the President, is hereby authorized to prescribe
and establish such forms and regulations, and the
same from time to time, with like approbation, to
alter and amend, for the government of the officers
.of the customs in this respect, as he may think pro-
per and necessary ; on the observance of which,
merchandise thus transported shall be exempted
from duty ; and it shall be lawful for the coasting
vessels of the United States to be employed in
the said trade, and not otherwise.
Sec. 7. And whereas it is provided^ by the hun-
dred and fourth section of the collection law, that
merchandise belonging to British subjects may be
brought (without regard to the character of the
vessel importing the same) into the ports of the
United States on the northern and northwestern
frontiers, subject tonohigheror other duties than
are or shall be payable by the citizens of the Uni-
ted States, on the importation of the same in
American vessels into the Atlantic ports of the
United States; and it being just and reasonable
that the same privilege should be extended to ves-
sels and merchandise belonging to persons resi*
1361
^^.
APPENDIX.
1362
Acts of CongresB.
ding at New Orleans, and other ports of Louis-
iana and Florida, on the Mississippi, or any of its
branches : Be it further enacted^ That, from and
after the last day of June next, all goods and mer-
chandise, the importation of which into the Uni-
ted States shall not be wholly prohibited, shall
and may freely, for the purposes of commerce, be
brought into the ports ot the United States on the
Mississippi, or any of its branches, in vessels be-
longing to New Orleans, or any other port of
Louisiana or Florida, on the Mississippi ; and such
goods or merchandise shall be subject to no
higher or other duties than are payable by the
citizens of the United States, on the importation
of the same in American vessels into the Atlantic
ports of the United States.
Sec. 8. And he it Jurther enacted, That, from
and after the last day of June next, no duty on
the tonnage of any boat, flat, or raft, or other ves-
sel, shall be demanded or collected on the arrival
or entry of such boat, flat, or raft, or other vessel,
in any district which is or may be established on
the Mississippi, or any of its branches, and on the
northern and northwestern boundaries of the
United States: Provided, nevertheless^ That this
exemption shall not be construed to extend to anv
vessel above fifty tons burden, and which shall
not be wholly employed in carrying on inland
trade between the ports of the United States on
the Mississippi, and its branches, and the ports of
Louisiana and Florida, on the same, including
New Orleans, and between the ports of th& north-
ern and northwestern boundaries of the United
States and the British provinces of Upper and
Lower Canada.
Sec. 9. And be it further enacted, That all that
part of tlie act, entitled "An act to regulate the
collection of duties on imports and tonnage," pass-
ed on the second day of March, one thousand
seven hundred and ninety-nine, that directs that
the collector of the district of Georgetown shall
reside at Georgetown, be, and is hereby, repealed.
Approved, May 1, 1802.
An Act making appropriations for the Military Estab-
lishment of the United States, in the year one thou-
sand eight hundred and two.
Be it enacted, fc, That, for defraying the sev-
eral expenses ot the Military Establishment of
the United States, for the year one thousand eight
hundred and two, for the Indian department, for
arsenals and armories, and for the erection of for-
tifications, the following sums be, and the same
hereby are, respectively appuropriated, that is to
say :
For the pay of the Army of the United States,
the sum of two hundred and ninety-two thousand
fw^o hundred and seventy-two dollars, including
therein the sum of sixty thousand dollars, appro-
priated by an act of the present session.
For the subsistence of the army, the sum of two
hundred and one thousand and twenty-seven dol-
lars and forty cents.
For forage, three thousand eight hundred and
four dollars.
For clothing, sixty-six thousand six hundred
and thirty dollars.
For the medical and hospital department, ten
thousand dollars.
For bounties and premiums, two thousand dol-
lars.
For all expenses of transportation, tents, tools,
and the contingent expenses of the War Depart-
ment, sixty-four thousand dollars.
For the pay, subsistence, and clothing of the
corps of engineers, seven thousand and ten dollars
and eighty cents.
For the Indian department, seventy-one thou-
sand seven hundred and fifty dollars.
For the expenses incident to the arsenals, mag-
azines, and armories of the United State^ sixty-
six thousand seven hundred and sixty-six dollars
and eighty-eight cents.
For erecting and completing fortifications and
barracks, seventy thousand five hundred dollars.
For running certain boundary lines between
the Indians and the white inhabitants of the Unit-
ed States, and for ascertaining the lines of sundry
reserved tracts of land in the Indiana and. North-
western Territories, five thousand dollars.
Sec. 2. And be it further enacted, That, for de-
fraying all expenses which will arise in conse-
quence of discharging the officers, non-commis-
sioned officers, and privates, who are or shall be
supernumerary by the act of the present session,
entitled ''An act fixing the Military Peace Es-
tablishment of the United States," and for carry-
ing the said act into complete operation, the fol-
lowing sums be. and they hereby are, respectively
appropriated, that is to say :
For pay of the officers, non-commissioned offi-
'cers, and privates, to be discharged, thirty-nine
thousand nve hundred dollars.
For subsistence, eighteen thousand dollars.
For clothing, twelve thousand dollars.
For forage, one thousand five hundred dollars.
For medical department, two thousand dollars.
For the quartermaster's department, forty-five
thousand dollars.
For bounties and premiums, one thopsand five
hundred dollars.
For allowance to officers and soldiers who are
to be discharged, thirty thousand dollars.
For contingencies, nine thousand dollars.
Sec. 3. Arul be it further enacted, That a sum
not exceeding forty thousand dollars, including
any unexpended balance of the sum of fifteen
thousand dollars, appropriated by the act approv-
ed on the thirteenth ot May, one thousand eight
hundred, entitled ^'An act to appropriate a certain
sum of money to defray the expense of holding a
treaty or treaties with the Indians^" be, and the
same hereby is, appropriated for defraying the ex-
pense of any treaty or treaties which may beheld
with the Indians south of the river Ohio : Pro^
vided, That the compensation to be allowed to
any commissioner appointed, or who may be ap-
pointed, for negotiating sucii treaty of treaties,
shall not exceed, exclusive of travelhng expenses,
the rate of eight dollars per day, during the actual
service of sp^h commissioner.
1363
APPENDIX.
1364
Ada cf Congress,
Sec. 4. And he it further encu:tedj That the
sevenl appropriations, hereinbefore made, shall
be paid and discharged, first, out of any balance
remaining unexpended of former appropriations
for the same objects respectively, and, secondly,
out of any moneys in the Treasury not otherwise
appropriated.
Approved, May 1, 1802.
An Act making appropriations for the fnipport of Gov-
ernment for the year one thousand eight hundred
and two.
Be it enacted^ ^c, That for the expenditure of
the civil list, including the contingent expenses
of the several departments and officers; tor the
compensation of clerks in the several loan offices,
and for books and stationery for the same ; for the
payment of annuities and grants ; for the support
of the Mint establishment; for the expenses of in-
tercourse with foreign nations; for the support of
light-housen, beacons, buoys, and public piers, and
for satisfying certain miscellaneous claims and
expenses, the following sums, including therein
the sum of one hundred thousand dollars already
appropriletted, by an act, entitled ^'An act making
a partial appropriation for the support of Gk)vern-
ment during the year one thousand ei^ht hundred
and two," be, and are hereby, appropriated, that is
to say :
For compensations granted by law to the mem-
bers of the Senate and House of Representatives,
their officers and attendants, estimated for a ses-
sion of five months continuance, one hundred and
sixty-four thousand five hundred and twenty-six
dollars and sixty-six cents.
For the expense of fire-wood, stationery, print-
ing, and all other contingent expenses of tne two
Houses of Congress, seventeen thousand dollars.
For extraordinary contingent expenses of the
House of Representatives, by resolutions of the
House during the present session, including also
the expenses of the library of the two Houses of
Confess, and for printine^ one thousand copies of
the Census of the United States, seven thousand
dollars.
For defraying the expense of new furniture,
provided for the House of Representatives, one
thousand two hundred and forty -four dollars and
eighty-five cents.
For the compensation to the President and Vice
President of the United States, thirty thousand
dollars.
For compensation to the Secretary of State,
clerks and persons employed in that department,
eleven thousand three nundred and sixty dollars.
For the incidental and contingent expenses in
the said department, twelve thousand eight hun-
dred and fifty dollars.
For compensation to the Secretary of the Trea-
sury, clerks and persons employed in his office,
eleven thousand two hundrea and forty-nine dol-
lars and eighty-one cents.
For expenses of translating foreign languages,
allowance to the person employed in receiving
and transmitting passports and sea-letters, sta-
tionery and printing, eight hundred dollars.
For compensation to the Comptroller of the
Treasury, clerks and persons employed in his office,
twelve thousand nine hundred and seventy-seven
dollars and eight cents.
For expense of stationery and^ printing in the
Comptroller's office, eight hundred dollars.
For compensation to tne Auditor of the Treasury, '
clerks and persons employed in his ofiice, twelve
thousand two hundred and twenty dollars and j
ninety-three cents.
For expense of stationery and printing in the ,
office of the Auditor, five hundred dollars.
For compensation to the Treasurer, clerks and
persons employed in his office, six tjiousand two
hundred and twenty-seven dollars and forty-five
cents.
For expense of stationery and printing in the
Treasurer's office, three hundred dollars.
For compensation to the Commissioner of the
Revenue, clerks and persons employed in his
office, (including the wa^es of two persons em-
ployed in counter-stamping paper m the said
office.) six thousand six hundred and forty-three
dollars and six cents.
For expense of stationery and printing in the
office of tne Commissioner of the Revenue, four
hundred dollars.
For compensation to the Register of the Trea-
sury, clerks and persons employed in his office,
sixteen thousand and fifty-two dollars and one
cent.
For expense of stationery and printing (inclod-
ing books for the public stocks and for the arrange-
ment of the marine papers) in the Register's office,
two thousand eight hundred dollars.
For compensation to the Superintendent of
Stamps, clerks and persons employed in his office,
one thousand six hundred and sixteen dollars and
sixty-seven cents.
For expense of stationery and printing in the
office of Superintendent of Stamps, two nundred
dollars.
For compensation to the Secretary of the Com-
missioners of the Sinking Fund, two hundred and
fifty dollars.
For compensation of clerks to be employed in
the Treasury, in addition to those authorized by
the act of the second of March, one thousand seven
hundred and ninety-nine, for the purpose of mak-
ing draughts of the several surveys of lands in
the Territory of the United States Northw^est of
the river Ohio, and for keeping the books of the
Treasury in relation to the sales of land at the
several land offices, two thousand dollars.
For fuel and otner contingent expenses of the
Treasury Department, including therein the sum
of one thousand dollars already appropriated, foor
thousand dollars.
For defraying the expense incident to the stating
and printing the public accounts for the year one
thousand eight hundred and two, one thousand
two hundred dollars.
For defraying the expense of printing two large
tables of imports, for one year, (ending the thir-
-1365
APPENDIX.
1366
Acts of Congress.
tieth of September, one thousand seven hundred ;
and ninety-nine,) in American and foreign ves-
sels, including paper furnished for the same, one
hundred and sixty-four dollars.
For compensation to .a Superintendent em-
ployed to secure the buildings and records in the
Treasury Department, during the present Year,
and for nine months service in the year one tnou-
sand eight hundred and one, not heretofore appro-
priated, including the expense of two watchmen,
and the repair of fi re-enffines, buckets, dbc. one
thousand four hundred dollars.
For compensation to the Secretary of War,
clerks and persons employed in his office, eleven
thousand two hundred and fifty dollars.
For expenses of fuel, stationery, printings and
other contingent expenses in the office of the
Secretary of War, one thousand dollars.
For compensation to the Accountant of the
War Department, clerks and persons employed
in his office, ten thousand nine hundred and ten
dollars.
For contingent expense* in the office of the
Accountant of the War Department, one thousand
dollars.
For compensation of clerks employed in the
Paymaster General's office, one thousand eight
hundred dollars.
For fuel in the said office, ninety dollars.
For connpensation to the Purveyor of Public
Supplies, clerks and persons employed in his office,
including a sum of seven hundred dollars for com-
pensations to his clerks, in addition to the sum
allowed by the act of the second day of March,
one thousand seven hundred and ninety-nine, and
for expense of stationery and fuel in the said office,
three thousand eight hundred dollars.
For compensation to the Secretary of the Navy,
clerks and persons employed in his office, nine
thousand one hundred and ten dollars.
For expense of fuel, stationery, printing, and
other contingent expenses in the office of the
Secretary of the Navy, two thousand seven hun-
dred dollars.
For compensation to the Accountant of the
Navy, clerks and persons employed in his office,
including the sum of one thousand one hundred
dollars, for compensation to his clerks, in addition
to the sum allowed by the act of the second of
March, one thousand seven hundred and ninety-
nine, ten thousand three hundred and fifty dollars.
For contingent expenses in the office of the Ac-
countant of the Navy, seven hundred and fifty
dollars.
For compensation to the Postmaster General,
Assistant Postmaster General, clerks and persons
employed in the Postmaster QeneraPs office, and
for making good a deficiency in the appropriation
for clerk hire in the said office, in the year one
thousand eight hundred and one. including a sum
of two thousand three hundrea dollars for com-
pensation to his clerks, in addition to the sum al-
lowed by the act of the second of March, one
thousand seven hundred and ninety-nine, eleven
thousand seven hundred and five dollars.
For expense of fuel, candles, stationery, furni-
.ture, chests, dtc., exclusive of expenses of suits,
prosecutions, mail-locks, keys, portmanteaus, sad-
dle bags, blanks for post offices, advertisements
relative to the mail, and other expenses incident
to the department at large, these being paid for
by the Postmaster General out of the funds of the
office, two thousand dollars.
For compensation to the several loan officers,
thirteen thousand two hundred and fifty dollars.
For compensation to the clerks to the Commis-
sioners of Ltoans, and an allowance to certain
loan officers, in lieu of clerk hire, and to defray the
authorized expenses of the several loan offices^
thirteen thousand dollars.
For defraying the expense of clerk hire in the
office of the Commissioner of Loans for the State
of Pennsylvania, in addition to the permanent
provision made by law, in consequence of the re*
moval of the offices of the Treasury Department,
in the year one thousand eight hundred, to the
permanent seat of Government, two thousand
dollars.
For compensation to the Surveyor General, and
the clerks employed by him, and for expense of
stationery and otner contingent expenses in the
Surveyor General's office, three thousand two
hundred dollars.
For defraying the expense of publishing in the
Sciota Gazette, the act providing for the sale of
lands in the Territory Northwest of the river
Ohio, and of paper for printing twelve hundred
copies of the act providing for the sale of West-
ern lands of the United States, eighty-four dollars.
For completing certain surveys authorized by
acts of Congress, passed the tenth of May, one
thousand eight hundred, the eighteenth of February
and third of March, one thousand eight hundrea
and one. and for surveying and laying off, accord-
inff to law, the lands around Vincennes, on the
Wabash, in the Indiana Territory, thirty-nine thou-
sand two hundred and ninety-six dollars and ninety
cents.
For compensation to the following officers of
the Mint:
The director, two thousand dollars.
The treasurer, one thousand two hundred dol-
lars.
The assayer, one thousand five hundred dol-
lars.
The chief coiner, one thousand Hyb hundred
dollars.
The melter and refiner, one thousand five hun-
dred dollars.
The engraver, one thousand two hundred dol-
lars.
One clerk, at seven hundred dollars;
And two, at five hundred dollars each.
For the wages of persons employed at the dif-
ferent branches of melting, refining, coining, car-
penter, millwright, and smith's work, including
the sum of eight hundred dollars per annum, al-
lowed to an assistant coiner and die-forger, who
also oversees the execution of the iron work|
seven thousand dollars.
For repairs of furnaces, cost of rollers and
screws, bar-iron, lead, steel, office furniture, and
1367
«
APPENDIX.
1368
Acts of Confess.
for all other contingencies of the establishment*
of the Mintj three thousand nine hundred dollars.
For compensation to the Governor and Judges,
and Secretary of the Territory Northwest of the
river Ohio, five thousand one hundred and fifty
dollars.
For expenses of stationery, printing patents for
land, and other contingent expenses for lands in
the said Territory, three hundred and fifty dol-
lars.
For compensation to the Governor, Judges, and
Secretary of the Mississippi Terrijory, five tnou-
sa'nd one hundred and fifty dollars.
For expenses of stationery, ofiice rent, and other
contingent expenses, in the said Territory, three
hundred and fifty dollars.
For compensation to the Governor, Judges, and
Secretary of the Indiana Territory, five thousand
one hundred and fifty dollars.
For expenses of stationery, office rent, and other
contingent expenses in the said Territory, three
hundred and fifty dollars.
For additional compensation to the clerks of
the several departments of State, Treasury, War,
and Navy, and of the General Post Office, not
exceeding for each department respectively, fif-
teen per centum in addition to the sums allowed
by the act, entitled "An act to regulate and fix
the compensation of clerks," eleven thousand
ei^t hundred and eighty-five dollars.
li^'or the discharge of such demands against the
United States, on account of the civil department,
not otherwise provided for. as shall have been ad-
mitted in a due course of settlement at the Treas-
ury, and which are of a nature, according to the
usage thereof, to require payment in specie, two
thousand dollars.
For the compensation granted by law to the
chief justice, associate judges, circuit judges, and
district judges of the United States, including the
chief justice and two associate judges of the Dis-
trict of Columbia, and to the Attorney General,
sixty-eight thousand six hundred and fifty dollars.
For the like compensations granted to the dis-
trict attorneys, and for defraying the expenses of
the supreme, circuit, and district courts of the
United States, including the court for the Dis-
trict of Columbia, jurors and witnesses, in aid of
the funds arising from fines, forfeitures, and pen-
alties; and likewise for defraying the expenses of
prosecution for offences against the United States,
and for safekeeping of prisoners, fifty-six thou-
sand nine hundred dollars.
For compensation to the marshals of the dis-
trict of Mame, New Hampshire, Vermont, Ken-
tucky, East and West Tennessee, one thousand
two hundred dollars.
For the payment of sundry pensions granted
by the late Government, nine hundred dollars.
For carrying into efiect the act of Congress, of
the third of February, one thousand eight hun-
dred and two, relative to the officers and crew of
the United States schooner Enterprise, one thou-
sand seven hundred and nineteen dollars.
For payment of the annuity granted to the
children of the late Colonel John Harding and
Major Alexander Trueman, by an act of Coq-
gress passed the fourteenth of May, oae thoasaQd
eight nundred, six hundred dollars.
For payment of the annual allowance to ike
invalid pensioners of the United States, for tiieir
pensions from the fifth of March, one thoosuid
eight hundred and two, to the fourth of March,
one thousand eight hundred and three, aiiietj-
three thousand dollars.
For the maintenance and support of light-hooso,
beacons, buoys, and public piers, and stakeage
of channels, bars, and shoals, and for occasional
improvement in the construction of lanieros aad
lamps, and materials used therein, and other con-
tingent expenses, including commissions to the
superintenaents of the said light-houses, at two
and a half per centum, forty-four thousand eight
hundred and forty-one dollars, and forty-foar
cents.
For the discharge of such miscellaneous de-
mands against the United States, not otherwise
provided for, as shall have been admitted in dae
course of settlement at the Treasury, and which
are of a nature, according to the usage thereof,
to require payment in specie, four thousand dollars.
For defraying the contingent expenses of Gor-
ernment, twenty thousand dollars.
For defraying the expenses of takine; the sec-
ond enumeration of the mhabitants of the United
States, in addition to the appropriation heretofore
made for that object, twenty thousand dollars.
For defraying the expenses incident to the par-
chase or erection of certain warehouses and stores
for the reception of goods, wares, and merchaa-
dise, under the "Act respecting qaarantine and
health laws," passed the twenty-fifth of Febroarf,
one thousand seven hundred and ninety-nine, sii-
ty-nine thousand and twenty-six dollars, and Iwelre
cents.
For the expenses of intercourse with foreign
nations, sixty-four thousand and fifty dollars.
For the salaries of the Commissioners. under
the seventh article of the treaty of Amity, Com-
merce, and Navigation, between the United States
and Great Britain, including contingent expenses,
twenty-four thousand and sixty-six dollars and
sixty-seven cents.
For salaries of the agents of the United Sutes
in London and Paris, expenses of prosecatipg
claims and appeals in tne courts of Great Britain,
in relation to captures of American vessels, and
defending causes elsewhere, twenty-nine tboo-
sand dollars.
For the salary of an a^'ent in London for the
relief and protection of American seamen, and
contin^^ent expenses to be incurred therein; and
for relieving seamen elsewhere, fifteen thousand
dollars.
Sec. 2. And be it further enacted, That the
several appropriations hereinbefore made, shall be
paid and discharged out of the fund of six han
dred thousand dollars reserved by the act ^'making
provision for the debt of the United States," and
out of any money which may be in the Treasury
not otherwise appropriated.
Approved, May 1, 1802.
1369
APPENDIX.
1370
Act8 of Congreaa.
An Act further to alter and establish certain post roads ;
and for the more secure carriage of the mail of the
United States.
Be it enacted^ ^c, That the following post
roads be discontinued:
From Pelham, to Nottingham West, in New
Hampshire.
From Hanover to Scituate, in Massachusetts.
From Bridgewater to Taunton.
From New York to Sagg Harbor, in the State
of New York.
From Schenectady to Sandy Hill.
From Salem to Bridgetown, in New Jersey.
From Lamberton. by Elizabethtown, to Ander-
Bonville. in North Carolina.
From Rockford, by Scull Camp, to Grayson
court-house.
From Amelia court-house, by Pridesyille, to
Paynesville, in Virginia.
From Washington to Cincinnati.
From Franklin court-house, to Jackson court-
house, in Georgia.
From Golden's, bv Gkesbridge, St. Tammany's.
Mecklenburg court-house, Marshall's store, Chris-
tian's store, Lunenburgcourt-house,and Edmund's
store, to Goldson's.
Sec. 2. And he it further enactedj That the fol-
lowing nost roads be established:
In Maine — From Dennysville to Eastport.
From Machias, by Dennysyille, to Scodiac.
In New Hampshire — From Pelham, by Wind-
ham, to Londonderry.
From Haverhill, by Bath and Littleton, to
Lancaster.
In Massachusetts — From Boston, by Easton, to
Taunton.
From Hin^ham. by Cohasset, to Scituate.
From Sprmgfield, by South Hadley, to North-
ampton.
From Salem, by Topsfield, to Haverhill.
In Vermont — From Middlebury, by New Ha-
ven, Moncton, Hinesburg, Williston, Jericho,
Essex, Westford, Fairfax, and Sheldon, to Hunts-
burg ; to return from Huntsburg, by Berkshire,
Enosburg, Bakersfield, Cambridge, Underhill, Je-
richo, Richmond, Huntington, Starksborough, and
Bristol, to Middlebury.
From Danville, by St. Johnsbury, through Bar-
net, to return to Ryegate.
In Connecticut — From Hartford, by Coventry,
Windham, and Canterbury, to Plainneld.
From Middletown, by Haddam. to Saybrook.
From New Haven, by Woodbridge, Waterbury,
and Watertown, to Litchfield.
From Norwich, by Lisbon, Canterbury, and
Brooklyn, to Pomfret.
m 0
In New York — From New York, by Brooklyn,
Jamaica, Hampstead, Merrick, Oysterbay South,
Huntington South, Islip, Patchauge Fireplace.
Moriches, West Hampton, Southampton, and
Bridgebampton, to Sagg Harbor.
From Hampstead, by Huntington, Smithtown,
Brook haven, and Riverhead, to Southhold.
From Newtown, in the county of Tioga, by
Catharinetowni to Gkneva.
From Schenectady to Ballstown Springs, Mil-
ton, Saratoga Springs, Greenfield, Hadley, Gal-
loway, Charleton, and a^ain to Schenectady.
From Sandy Hill to Fort George, and through
the towns of Thermon and Jay, to Plattsburg, and
thence to the Northern line of said State.
In New Jersey — From Woodbury, by Bridge-
town, Milville, Port Elizabeth, and Cape May
court-house, to Cape Island.
From Somerset court-house, by Basken ridge,
to Morristown.
From New Germantown, by David Miller's, in
Washington township, and New Hampton, to
Pittstown.
In Pennsylvania — From Lancaster, by Reading,
Allenstown, Bethlehem, and Stroud's, to Milford.
From Lebanon to Jonestown.
From Jenkinstown, by the cross roads and New
Hope, to Flemminffton, New Jersey.
From Chambersburg, by Messersburg, to Bed-
ford.
From Downingtown, by Westchester, Kennet's
.square, and New London cross roads, to the brick
meeting-house, in Maryland.
In Maryland — From Reistertown, by McAlis-
tertown, Abbotstown, and Berlin, to Carlisle,
Pennsylvania.
From Elkton, by the brick meeting-house, to
the Rising Sun, Black Horse, and Sorrel Horse
taverns, to Lancaster, Pennsylvania.
From Westminster, in Maryland, by Union
Mills, Petersburg, and Gettysburg, to Chambers-
bur^, in Pennsylvania.
From Boonsborough, by Sharpsburg and Ha-
gerstown, to Messersburg, Pennsylvania. The
mail from EUicott's Mills to Montgomery court-
house, shall pass by Brookville.
In Delaware — From Greorgetowu, by Proadkiln
landing, to Lewistown.
From Newport, by Chatham, Cochran's, and
Strasburg, to Lancaster, in Pennsylvania.
From Whitelysburg to Frederica.
From Greorgetown, by Bridge branch, and
Northwest Forkbridge, to Huntington creek or
Newmarket, Maryland, as the postmaster may
direct.
In Ftr^'nia— From Leesburg to Centreville.
From New Dublin, by Tazewell court-house,
and Lee court-house, to Robinson's mills, at the
foot of Cumberland mountain.
From Cumberland court-house, to Ca Ira.
From Culpepper court-house, by Wood ville and
Mundell's store, to Newmarket, in Shenandoah
county.
From Fauquier court-house, by Aquia, to King
George court-house.
From Winchester, by Frontroyal, to Culpepper
court-house.
From Brook court-house, to Steubenville, in
the Northwestern Territory.
From Brooke court-house, to West Liberty.
From Brookington, by Newman's and Ran*
dolph's taverns, and Ennis's store, to Henderson
and Fitzgerald's store.
From Amelia court-house, by Perkins's store,
to painesville.
1371
APPENDIX.
Acts of Congress.
From Wyllesville, in Charlottecounty,by Speed
and Wilson's store, Sterling Yancey's and Nor-
man's store, to Person court-house in North Car-
olina.
From Harrisville, by Field's mill, duarrelsville,
McFarland's store, Lunenburg court-house, Chris-
tiansville, Marshaisville^ Mecklenburg court-house,
and St. Tammany's ; and to return by Geesbridge,
Edmund's store. Field's mill, to Harrisville.
From Richmond court-house to Tappahanock.
In North Carolina — From Plymoutn to Robert
Winn's, on Scuppernong river.
From Jonesburg to Pasquotank river bridge.
From Rutherfordstown, by John Gowen's store,
to Greenville court-house, in South Carolina.
From Wilkes to Ash court-house.
The road from Mount Airy to Grayson court-
house, in Virginia, shaH pass by Scull Camp.
In Tennessee — From Jonesborough to Carter
court-house.
From Nashville to Franklin.
From Knoxville to Burville.
In South Carolina — The road from Edgefield*
to Cambridp^e,- shall pass by Amos Richardson's,
and return by Northampton.
From Monk's corner, over Biggen Bridge, by
Pineville, Murray's ferry, Santee, to Kingstree.
In Georgia — From Oglethorpe court-house, by
Athens, through Clarksburg, to Jackson court-
house.
In Kentxicky — From Shelby ville to Louisville.
From Danville, by Pulaski court-house, to
Wayne court-house.
In the Northwestern Territory — From Marietta,
by Chilicothe and Williamsburg, to Cincinnati.
Sec. 3. And be it further ena^eted^ That, for
the better and more secure carrying of the mail of
the United States on the main post road between
Petersburg, in Virginia, and Louisville, in Geor-
^a, the Postmaster General shall be, and hereby
is, authorized and directed to engage and contract
with private^ companies, or adventurers, for car-
rying the mail of the United States, for a term of
time not exceeding five years, in mail coaches or
stages, calculated to convey passengers therein :
Provided^ That the expense tnereof shall not ex-
ceed a sum equal to one-third more than the whole
of the present expense incurred for carrying the
mail on such road on horseback. And the said
Postmaster General may hereafter, at his discre-
tion require, as a stipulation in the contract for
carrying the mail from Suffield, in Connecticut,
by Windsor, in Vermont, to Dartmouth College,
in New Hampshire ; that the same shsdl be con-
veyed in a carriage or line of stages : Provided^
The expense thereof shall not exceed more than
one-third the sum heretofore given for carrying
the mail on the last mentioned route by a post
rider.
Sec. 4. And he it further enacted^ That, from
and after the first day of November next, no other
than a free white person shall be employed in
carrying the mail or the United States, on any of
the post roads, either as a post rider or driver of a
carriage carrying the mail ; and every contractor
or person who shall have stipulated, or may here-
after stipulate, to carry the mail, or whose duty it
shall be to cause the same to be conveyed, on any
of the post roads, as aforesaid, and who shall, con-
trary to this act, employ any other than a free
white person as a post rider or driver, or in anr
other way, to carry the mail on the same, shall,
for everv such offence, forfeit and pay the sum of
fifty dollars, one moiety thereof to the ose ^ the
United States, and the other moiety thoeof to the
gerson who shall sue for. and prosecute the same,
efore any court having competent jorisdietioa
thereof.
Sec 5. And be it further enacted^ That all
letters, packets and newspapers, to and from the
Attorney General of the United States, shall be
conveyed by post free of postaee : Provided^ Thai
all letters by him sent be franked in the maaoer
required by the seventeenth section of the act to
establish the Post Office.
Sec. 6. And be it further enacted. That the
Postmaster General be authorized to allow the
postmasters, at the several distributing offices, sficii
compensation as shall be adequate to their serenl
services in that respect: Provided^ That the same
shall not exceed in the whole five per cent, on the
whole amount of postages on letters and news-
papers received for distribution, and that the said
allowance be made to commence on the first day
of June, in the y^^r one thousand eight handed:
Provided^ also, That if the number of mails r^
ceived at, and despatched from, any such office 'm
not actually increased by the distributing sjrstem,
then no additional allowance shall be made to the
postmaster.
Sec. 7. And be it further enacted, That* there
shall be allowed to the deputy postmaster at the
city of Washington, for his extraordinary expense
incurred in the discharge of the duties ot his office,
an additional compensation, at the rate of oae
thousand dollars per annum, to be computed from
the first day of January last.
Sec. 8. And be it further enacted. That this
act shall not be so construed as to affect any exist-
ing contracts for carrying the«mail.
Approved, May 3, 1802.
An Act to amend an act, entitled ^'An act for the n-
Uef of sick and disabled seamen ;" and Ibr other
purposes.
Be it enacted, ^c, That the moneys heretofore
collected in pursuance of the several acts. ^ for
the relief of sIcIe and disabled seamen," and at
E resent unexpended, together with the monep
ereafte^ to be collected by authority of the hs-
forementioned acts, shall constitute a general fund.
which the President of the United States shall
use and employ, as circumstances shall require,
for the benefit and convenience of sick and dis-
abled American seamen : Provided, That the sum
of fifteen thousand dollars be, and the same is
hereby, appropriated for the erection of aD hos-
pital in the district of Massachusetts.
Sec. 2. And be it further enacted. That it shall
be lawful for the President of the United States
to cause such measures to be taken as. in his opin*
1373
APPENDIX.
1374
Acts qf Congress.
ion, may be expedient for providing convenient
accommodations, medical assistance, necessary at-
tendance, and supplies, for the relief of sick or dis-
abled seamen of the United States, who may be
at or near the port of New Orleans, in ease the
same can be done with the assent of the govern-
ment having jurisdiction over the port; and for
this purpose, to establish such regulations, and to
authorize the employment of such persons as he
may judge proper ; and that, for defraying the ez-
Sense thereof, a sum not exceeding three tnousand
ollars be paid out of any moneys arising from the
said fund not otherwise appropriated.
Sec. 3. And be it further enacted, That, from
and after the thirtieth day of June next, the mas-
ter of every boat, raft, or flat, belonging to any
citizen of the United States, which shall go down
the Mississippi with intention to proceed to New
Orleans, shall, on his arrival at Fort Adams, render
to the collector or naval officer thereof, a true ac-
count of the number of persons employed' on board
such boat, raft, or flat, and the time that each pei^
son has been so employed, and shall pav to the
said collector or naval officer at the rate ot twentv
cents per month, for every person so employed,
which sum he is hereby authorized to retain out
of the wages of such person : and the said collec-
tor or naval officer shall not give a clearance for
such boat, raft, or flat, to proceed on her voyage
to New Orleans, until an account be rendered to
him of the number of persons employed on board
such boat, raft, or flat, and the money paid to him
by the master or owner thereof: And if any such
master shall render a false account of the number
of persons, and the length of time they have sev-
erally been employed^ as is herein required, he
shall forfeit and pay fifty dollars, which shall be ap-
plied to, and shall make a part of, the said general
lund for the purposes of this act: Providea. That
all persons employed in navigating any sucn boat,
raft, or flat, shall be considered as seamen of* the
United States, and entitled to the relief extended
by law to sick and disabled seamen.
Sec. 4. And be it Jurther e?iacted. That the
President of the United States be, and he is hereby,
authorized to nominate and appoint for the port
of New Orleans, a fit person to be director of the
marine hospital of the United States, whose duties
shall be in all instai>ces the same as the directors
of the marine hospital of the United States, as di-
rected and required by the act, entitled "An act
for the relief of sick and disabled seamen."
Sec. 6. And be it further efnajcted^ That each
and every director of the marine hospital within
the United States, shall, if it can with convenience
be done, admit into the hospital of which he is
director, sick foreign seamen, on the application of
the master or commander of any foreign vessel to
which such sick seamen may belong ; and each
seaman so admitted shall be subject to a charge
of seventy-five cents per day for each day he may
remain in the hospital, the payment of which the
master or commander of such foreign vessel shall
make to the collector of the district in which such
hospital is situated: and the collector shall not
grant a clearance to any foreign vessel, until the
money due from such master or commander, in
manner and form aforesaid, shall be paid ; and the
director of each hospital is hereby directed, under
the penalt^r of fifty dollars, to make out the ac-
counts against eacn foreign seaman that may be
placed in the hospital, under his direction, and ren^
der the same to the collector.
Sec. 6. And be it further enacted, That the
collectors shall pay tne money collected by vir-
tue of this and the act to which this is an amend-
ment, into the Treasury of the United States, and
be accountable therefor, and receive the same
commission thereon as for other moneys by them
collected.
Sec. 7. And be U further enacted, That each
and every director of the marine hospital shall be
accountable at the Treasury of the United States
for the money by them received^ in the same
manner as other receivers of public money, and,
for the sums by them expended, shall be allowea
a commission at the rate of one per cent.
Approved, May 3, 1802.
An Act making an appropriation for carrying into ef-
fect the Convention between the United States of
America and His Britannic Majesty.
Be it enacted, ^c, That, for carrying into efi*ect
the convention of the eighth day of January, one
thousand eight hundred and two, between the
United States and His Britannic Majesty, the sum
of two millions six hundred and sixty-four thou-
sand dollars be, and the same hereby is, appro-
priated.
Sec. 2. And be it Jurther encu:ted, That the
aforesaid sum shall be paid in such instalments,
and at such times, as are fixed by the said con-
vention^ out of any moneys in the Treasury, not
otherwise appropriated.
Approved, May 3, 1802.
An Act additional to, and amendatoiy of, an act, enti-
tled *'An act oonceming the District of Colnmbia.''
Be it enacted, ^c, That the circuit court of the
county of Wasnington, in the Territory of Co-
lumbia, shall have power to proceed in all com-
mon law and chancery causes, which now are or
hereafter shall be instituted before it, in which
either of the parties reside without the said Ter-
ritory, in the same way that non-residents are
proceeded against in the general court or in the
'supreme court of chancery in the State of Mary-
land.
Sec. 2. And be it Jurther enactedf That the cir-
cuit court of the county of Alexandria, in the
District of Columbia, shall have power to pro-
ceed in all common law and chancery causes,
which now are or hereafter shall be institutea
before it, in which either of the parties are non-
residents of said District of Columbia, in the same
way, and under the same regulations, observed by
the district court or by the high court of chan-
cery in Virginia, in proceeding against non-resi-
dents.
Sec. 3. And be it Jurther enacted, That the
courts for the counties of Alexandria and Wash-
1375
APPENDIX.
1376
Acta of Congress.
iogton shall hereafter be holdea at the periods fol-
lowing, to wit : for the county of Alexandria, on
the fourth Monday of June and November, and
for the county of Washington, on the fourth Mon-
day of July and December, in each year ; and all
process heretofore issued from the offices of the
said courts and not yet returned, shall be return-
able to the first day of the sessions of the said
courts, respective!^, and all causes now depend-
ing in the seme shall stand adjourned and con-
tinued over to the next sessions of the said courts,
as established by this act. And the said courts
are hereby invested with the same power of hold-
ing adjourned sessions that are exercised by the
courts of Maryland.
Sec. 4. Ana be it further enacted^ That no ca-
pias ad satisfadenaum shall hereafter issue on
any judgment rendered by a single magistrate, or
in any case where the judgment, exclusive of
costs, shall not exceed twenty dollars ; but that in
such'cases execution shall be only on goods and
chattels of the debtor, and shall issue by order of
the justice who may have taken cognizance of
the action, from the clerk's office, and shall be re-
turnable thereto ; that all such executions be re-
turnable on the first Monday in every month, and
that the same, and also the warrant to bring the
property before the justice, be directed to one of
the constables, whose duty it shall be to obey the
same ; that each of the said constables shall give
bond, with one sufficient surety, to be approved of
by any one of the district judges, for the faithful
execution of the duties of his office, in the sum of
five hundred dollars ; that the clerk's fees for is-
suing and filing the return of everv such execu-
tion, shall be twenty-five cents; tne constable's
fees for return and service, shall be fifty cents ;
and that a commission of eight per cent, be al-
lowed the constable for every sum thereon by him
levied.
Sec. 5. And he it further enacted^ That so much
of the original act to which this is a further sup-
plement as confines the jurisdiction of the courts
of this Territory to cases between parties who
are inhabitants of, or residents within the same,
shall not be construed to extend to any case where,
by the laws of Maryland and Virginia, respect-
ively, attachments may issue to anect the prop-
erty of absconding debtors, or others having prop-
erty within the district, and whose persons are not
answerable to the process of the court.
Sec. 6. And he it further enacted^ That the
taxes to be levied in the county of Alexandria
shall hereafter be assessed by the justices of the
peace of the said county, and the poor of the town
and county parts of the said county of Alexandria
shall be provided for, respectively, in like manner
as the county and corporation courts were author-
ized to do by the laws of Virginia, as they stood
in force within the said county on the first Mon-
day of December, in the year one thousand eight
hundred.
Sec 7. Andhe it further enacted. That no part
of the laws of Virginia or Maryland declared by
an act of Congress, nassed the twenty-seventh day
of February, one tnousand eight nundred and
one, " concerning the District of Columbia," to be
in force within the said District, shall ever be
construed so as to prohibit the owners of slaves to
hire them within, or remove them to, the District,
in the sam^ way as was practised prior to the pas-
sage of the above recited act.
Sec. 8. And he it further enacted, That so much
of two acts of Congress, the one passed the twen-
ty-seventh day of February, one thousand eight
hundred and one, entitled ^*An act concerning the
District of Columbia ;" the other passed the third
day of March, one thousand eight hundred and
one, supplementary to the aforesaid act, as pro-
vides for the compensation to be made to certain
justices of the peace thereb)r created, and for com-
pensation to jurors attending the courts within
said District, except so much thereof as relates to
their travelling expenses attending the same, shall
be, and is hereby, repealed ; and the jurors, in fu-
ture, shall serve in the said courts, and be sum-
moned to attend the same in like manner as jurors
serve and were summoned in the courts of Vir-
ginia, prior to the passage of the above recited acL
Sec. 9. And be it further enacted, That ordi-
nary licenses, retailers' licenses, and hawkers and
pedlars' licenses, shftll be granted by the circuit
court of the said District, in the respective coun-
ties, as the same were heretofore granted by the
courts of Maryland and Virginia, respectively.
And the several judges of the said circuit coon
shall have like authority to grant such licenses in
vacation, as the justices of the courts of Mary land
and Virginia heretofore possessed ; and the money
arising from such licenses shall be applied to the
use and benefit of the said counties, respectively,
in such manner, and to such purposes, as the jus-
tices of the levy courts in the same shall appoint
and direct.
Sec 10. And he it further enacted^ That the
marshal of the District of Columbia oe, and he
hereby is, authorized and directed, with the ap-
probation of the President of the United States,
to cause a good and sufficient jail to be built with-
in the city of Washington, and that a sum not
exceeding eight thousand dollars be, and the same
hereby is, appropriated to that purpose, to be
paid out of any unappropriated moneys in the
Treasury.
Sec. 11. And he it further enacted, That the
corporation of Greorgeto wn, in the District of Co-
lumbia, shall have full power and aathoritv to tax
any particular part or district of the town tor pav-
ing the streets, lanes, or alleys therein, or for sink-
ing wells, or erecting pumps which may appear
for the benefit of such particular part or district:
Provided, That the rate of tax so to be levied
shall not exceed two dollars per foot front, and
that the same shall be enforced and collected in
the same manner that the taxes which the said
corporation had. heretofore been authorized to lay
and collect. «
Sec. 12. And he it further enacted, That arti-
cles inspected at one port in the said District shall
not be subject to a second inspection at any other
port in the said District.
Sec. 13. And be it further enacted^ That the
1377
APPENDIX.
1378
Acts of Congress,
President of the United States be authorized to
cause the militia of the respective counties of
Washington and Alexandria to be formed into re-
giments and other corps, conformably, as nearly as
may be, to the laws of Maryland and Virginia as
they stood in force in the said counties, respect-
ively, on the first Monday in December, in the
year one thousand eight hundred; and that he ap-
point and commission, during pleasure, all such
officers of the militia of the said District as he
may think proper ; that he be authorized to call
them into service in like manner as the Executives
of Maryland and Virginia were authorized in the
counties of Washin^rton and Alexandria, respect-
ively} on the first Monday of December, one tnou-
sand eight hundred ; ana that such militia, when
in actual service, be entitled to the same pay and
emoluments as the militia of the United States ,
when called out by the President.
Approved, May 3, 1802.
An Act to incorporate the inhabitants of the City of
Washington, in the District of Columbia.
Beit enacted^ ^c, That the inhabitants of the
City of Washington be constituted a body politic
and corporate, by the name of a Mayor and Coun-
cil of the City of Washington, and by their cor-
porate name, may sue and be sued, implead and
oe impleaded, grant, receive, and do all other acts
as natural persons, and may purchase and hold
real, personal, and mixed property, or dispose of
the same for the benefit ofjlie said city; and
may have and use a city seal, which may be bro-
ken or altered at pleasure. The City of Washing-
ton 3hall be divided into three divisions or wards,
as now divided by the levy court for the county,
for the purpose of assessment ; but the number
may be increased hereafter, as in the wisdom of
the City Council shall seem most conducive to
the general interest and convenience.
Sec. 2. And be it further enacted. That the
Council of the City of Washington shall consist
of twelve members, residents oi the city, and up-
wards of twenty-five years of age, to be divided
into two chambers, the first chamber to consist of
seven members, and the second chamber of five
members ; the second chamber to be chosen from
the whole number of councillors elected, by their
ballot. The City Council to be elected annually,
by ballot, in a general ticket, by the free white
male inhabitants of ful^age, who have resided
twelve months in the city, and paid taxes therein
the year preceding the election's being held : the
justices of the county of Washington^ resident in
the city^ or any three of them^ to preside as judges
of election, with stich associates as the Council
may, from time to time, appoint.
Sec. 3. And be it further enacted^ That the
first election of members for the City Council
shall be held on the first Monday in June next,
and in every year afterwards, at such place in
each ward as the judges of the election may
prescribe.
Sec. 4. And be it further enacted^ That the
polls shall be kept open from eight o'clock in the
7th Con.
morning till seven o'clock in the evening, and no
longer, for the reception of ballots. On the clos-
ing of the poll, the judges shall close and seal
their ballot-boxes, and meet on the day following
in the presence of the marshal of the district, on
the first election, and the Council afterwards,
when the seals shall be broken, and the votes
counted : within three days after such election,
they shall give notice to the persons having the
greatest number of legal votes, that they are duly
elected, and- shall make their return to the Mayor
of the city.
Sec 5. And be it further enacted. That the
Mayor of the city shall be appointed, annually,
by the President of the United States : he must
be a citizen of the United States, and a resident of
the city, prior to his appointment.
Sec. 6. And be it further enacted. That the City
Council shall hold their sessions in the City Hall,
or, until such building is erected, in such place as
the Mayor may provide for that purpose, on the
second Monday m June, in every year ; but the
Mayor may convene them oftener, if the public
good require their deliberations. Three-fourths
of the members of each Council may be a quo-
rum to do business, but a smaller number may
adjourn from day to day : they may compel the at-
tendance of absent members, in such manner, and
under such penalties, as they may, by ordinance,
provide : they shall appoint their respective Pres»
idents, who shall preside duHnff their sessions,
and shall vote on all questions where there is an
equal division ; they shall settle their rules of pro*
ceedin^s, appoint their own officers, regulate tneir
respective fees, and remove them at pleasure:
they shall judge of the elections, returns, and
qualifications of their own members, and may,
with the concurrence of three-fourths of the
whole, expel any member (or disorderly beha*
viour. or mal-conduct in office, but not a second
time tor the same offence : they shall keep a jour-
nal of their proceedings and enter the yeas and
nays on any question, resolve, or ordinance, at the
request of any memoer^ and their deliberations
shall be public. The Mayor shall appoint to all
offices under the corporation. All ordinances or
acts passed by the City Council shall be sent to
the Mayor, for his approbation, and when approv-
ed by him, shall then be obligatory as such. But
if the said Mayor shall not approve of such ordi-
nance or act, he shall return the same within five
days, with his reasons in writing therefor ; and if.
three-fourths of both branches of the City Coun-
cil, on reconsideration thereof, approve of the
same, it shall be in force in like manner as if he
had approved it, unless the City Council, by their
adjournment, prevent its return.
Sec. 7. Ana be it further enacted, That the Cor-
poration aforesaid shall have full power and au-
thority to pass all by-laws and ordinances ; to pre-
vent and remove nuisances; to prevent the in-
troduction of contagious diseases within the city ;
to establish nicht-watches or patrols, and erect
UmpS) ^^ regulate the stationing, arjcnorage,and
HiootIdS ^^ vessels ; to provide for licensing and
J. ^j\ating auctions, retailers of liquors, hacltney*
1379
APPENDIX.
1380
Acta of Congress.
cari;iages, wagons, carts, and drays, and pawn-bro-
kers within the city ; to restrain or prohibit gam-
bling, and to provide for licensing, regulating, or
restraining, theatrical or other amusements with-
in the city ; to regulate and establish markets ; to
erect and repair bridges ; to keep in repair all ne-
cessary streets, avenues, drains, and sewefs, and to
pass regulations necessary for the preservation of
the same, agreeably to^ the plan of the said city ; to
provide for the safe-keeping of the standard* of
weights and measures fixed by Congress, and for
tke regulation of all weights and measures used
in the city ; to provide for the licensing and regu-
lating the sweeping of chimneys and fixing the
rates thereof; to establish and regulate fire wards
and fire companies ; to regulate and establish the
size of bricks that are to be made and used in the
city ; to sink wells, and erect and repair pumps in
the streets ; to impose and appropriate fines, pen-
alties, and forfeitures foi breacn of their ordinan-
ces ; to lay and collect taxes ; to enact by-laws for
the prevention and extinguishment of fire^ and
to pass all ordinances necessary to give effect and
operation to all the powers vested in the Corpora-
tion of the City of Washington : Provided, That
the by-laws or ordinances of the said Corporation,
shall be in no wise obligatory upon the persons of
non-residents of the said city, unless in cases of
intentional violation of bv-laws or ordinances pre-
viously promulgated. All the fines, penalties, and
forfeitures, imposed by the Corporation of the
City of Washington, if not exceeding twenty dol-
lars, shall be recovered before a single magistrate,
as small debts are, by law, recovera^e ; and if such
fines, penalties, and forfeitures, exceed the sum of
twenty dollars, the same shall be recovered by ac-
tion of debt in the District Court of Columbia,
for the county of Washington, in the name of
the Corporation, and for the use of the City of
Washington.
Sec. 8. And be it further enacted, That the per-
son or persons appointed to collect any tax impos-
ed in virtue of the powers granted by this act,
shall have authority to collect the same by distress
and sale of the goods and chattels of the person
chargeable therewith : no sale shall be made un-
less (en days' previous notice thereof be given; no
law shall be passed by the City Council subjecting
vacant or unimproved city lots, or parts of lots, to
be sold for taxes.
Sec. 9. And be it further enacted. That the City
Council shall provide for the support of the poor,
infirm, and diseased of the city.
Sec. 10. Provided always, and be it further en-
acted, That no tax shall be imposed by the City
Council on real property in the said city, at any
higher rate than three quarters of one per centum
on the assessment valuation of such property.
Sec. 1 1. And be it further enacted, That this act
shall be in force for two years, from the passing
thereof, and from thence to the end of tae next
session of Congress thereafter, and no longer.
Approved, May 3, 1802.
Resolution authorizing the Secretary of State to fiir-
nish the members of both HouBes with the laws of
the Sixth CoDgress.
Resolved by the Senate and House of Reprt-
sentatives of the United States of America in Con-
gress assembled, That the Secretary of State be
directed to cause to be furnished to each member
of the two Houses of Congress, a copy of the laws
of the Sixth Congress.
Approved, January 21, 1802.
Resolutions expressing the sense of Congress on the
gallant conduct of Lieut. Sterret, the officers and
crew of the United States schooner Enterprise.
Resolved by the Senate and House of Represent'
ogives of the tinited States of America in Congress
assembled^ That they entertain a high sense of the
gallant conduct of Lieutenant Sterret, and the
other officers, seamen, and marines, on board the
schooner Enterprize, in the capture of a Tripoli-
tan corsair, of fourteen guns and eighty men.
Resolved, That the President of the United
States be requested to present to Lieutenant Ster-
ret a sword, commemorative of the aforesaid he-
roic action ; and that one month's pay be allowed
to all the other officers, seamen, and marines, who
were on board the Enterprize when the aforesaid
action took place.
Approved, February 3, 1802.
INDEX
TO THE PROCEEDINGS AND DEBATES OF THE FIRST SESSION OF
THE SEVENTH CONGRESS.
SENATE.
A. Page.
AdjoDrnment, resolution respecting the, received 203
agreed to 260
committee appointed to notify the President
of the intended 304
takes place ...... 206
Anderson, Mr., remarks of, on the Judiciary
system - - - - - - . i67
Apportionment of members^ a bill for the, receiv-
ed and referred ----- 24
under consideration ----- 42
passed - - - . . . -46
Appropriations, a bill making certain, for the year
1802, received - - - - - 186
referred 187
passed 188
a bill making them for the Navy, received - 267
referred - - -' - - - - 268
reported - - - ... . . 273
recommitted ...... 274
reported -----.. 291
amended ---.... 297
passed - - .. . - . . . 301
a bill making them for expenses of a nego-
tiation with the British Government, re-
ported ----... 202
passed ---.... 204
a bill making them for expenses of the
French Convention, received - - -, 203
referred and reported .... 204
passed 260
a bill making them for the Militaiy Estab-
lishment, received - - - . - 291
passed 301
a bill making partial, for the year 1802, re-
ceived and referred .... 2O6
reported - - 209
passed 250
a bill making them for the support of Gov-
ernment, received 291
passed 301
a bill making them for expenses of the Brit-
ish Convention, passed - . . . 303
Armstrong, Mr., of New York, the resignation
of, received ...... 186
Austin, David, memorial of, presented and read - 304
B.
Bailey & Walker, and others, merchants, petition
of, complaining of injuries received from
French privateers, received and referred - 199
Baldwin, Abraham, of Georgia, elected President
of the Senate pro tern. - - .9 and 265
his remarks on the Judiciary ... 99
• Page.
Blodget, Samuel, Thomas Fofanan, and Aaron
Shepard, petition of, presented - - 194
leave given them to withdraw it - - 200
Books and maps, resolution to appoint a commit-
tee for purchasing, received - - - 196
committee appointed - - - - - 198
Bradley, Mr., remarks on the Judiciary - - 161
Brainard, Elijah, a disabled soldier, petition of,
presented and referred .... 253
committee discharged - - - - 301
Breckenridge, Mr., remarks of, on the Judiciary 26,
92, 154, 178
Brown, David, petition of, presented and read - 299
postponed to next session - - . . 304
Business, committee appointed to inquire what,
is necessary to be done before the adjourn-
ment 258
their report 260
C.
Chaplain elected 17
Chipman, Mr., of Vermont, remarks of, on the
Judiciary system ..... 122
Cocke, Mr., of Tennessee, remarks of, on the Ju-
diciary 75
Coins, a bill to repeal the act respecting foreign,
received 147
referred 160
reported 191
under consideration - - • - 193, 196
passed - - 296
Calhoun, Mr., of South Carolina, remarks on the
Judiciary - 138
Collectors. (See Revenue Colledora.)
Commerce and seamen, a biH for the protection
of, received 146
under consideration . - - . 148, 160
passed - 162
Compensation of members, a bill respecting the, *
received and referred .... 264
reported 266
passed 292
Congigess, a bill fixing time for next meeting of,
introduced 268
third reading negatived .... 273
Constitution, resolution respecting the proceed-
ings of the General Convention which
formed the 258
amendments to the, offered ... 269, 264
postponed until next session ... 293
resolution to amend, received ... 303
non-concurrence .... - 304
m
INDEX.
IV
Senate Proceedings and Debates,
Page.
Coulon, Paul, a bill for the relief of, received - 259
referred 260
reported 263
third reading negatived .... 267
Courts of the United States. (See Judiciary.^
Grimes, a bill for the punishment of certain, intro-
duced 186
lost 187
D.
Dayton, Mr., remarks of, on the bill repecting the
Judiciary system - - . 148, 155, 18
on internal taxes 245
Debt, public, a bill providing for the redemption
of, received and referred .... 263
reported 266
under consideration ... 268, 270, 275
bill passed 291
Delaware river, memorial respecting the condi-
tion of the piers in the, presented - - ' 146
Dexter, Samuel, a biU for the settlement of his ac-
counts, received - - - - - 153
referred 160
reported .-.---- 184
passed ------- 186
District of Columbia, a bill to establish a govern-
ment in the, introduced .... 259
referred 260
reported 264
third reading negatived - - - - 273
an amendatory bill received - - - 297
amended ------- 301
passed 303
amendments received and agreed to - • 304
a bill respecting police for, reported - - 293
postponed 304
Diichoquet, Francis, a bill for the relief of, re-
ceived and referred - - - - 197
reported 197
passed - - 198
Dufour, John James, vinedresser, petition of, pre-
sented and referred - - . . i88
bill reported 199
passed - • 200
Duties, a bill to amend the act respecting, on im-
ports and tonnage received - - - 185
referred 186
reported ------. 190
lost 195
a bill to regulate the collection of, on imports
and tonnage, and to establish certain dis-
tricts, received 264
referred 265
reported 273
• recommitted 295
again reported 296
passed - 301
I^wbacks, a bill to allow, on goods exported to
New Orleans, and therein to amend the
act respecting imports and tonnage, re- *
ceived 185
referred 186
reported - - - . - - - - 190
lost 196
a bill to amend the act to retain a further
sura on, received 207
referred 208
reported - 254
passed - - 257
E. Page.
Elections, resolutions offered respecting • 259, SM
postponed to next session - - - • 293
a bill to establish a more uniform manner of
holding, introduced, and second readiog
negatived - - - - - • 273
Enterprize, schooner, resolution respecting offi-
cers and crew of the, offered - • 18
agreed to- - - - - --11
non-concurrence with the above and other
resolutions received and. concurred in • 152
Erb, Lawrence, bill for the relief of, introduced - 20
amended - - - - - - - 145
passed - - - - - - - 146
F.
Fisheries, a bill concerning persons engaged in
certain, received and referred - - • 196
reported and passed - - • • 198
Fitzsimons, Thoinas, and others, memorial of, re*
specting the Judicial system, received • 188
petition of, respecting drawbacks, received
and referred ------
Fowler, Theodosius, a bill for the relief of, re-
ceived and referred - - - - 259
reported - - - . - - - • 261
passed - - - - . - . 292
G.
Gantt, Rev. Mr., elected Chaplain - .- • H
Gardner, Alexander, and Thomas Pinckney,peti-
tion of, read and referred - - - 200
adverse report made and adopted • • "66
Georgetown, D. C, petition of certain inhabi-
tants of, presented and referred - - ^
Georgia, committee appointed on that part of the
President's Message relating to the State
of ------- 2%
their report - - - - - - 302
Great Britain, a bill making appropriations for
the Convention with, received - - 300
passed - - - - - - - 303
Gurnet Point. (See Light-houses.)
H.
Hartstrome, William^ and others, petition of, re-
specting French depredations, presentbd
and referred - - - - - - 187
Hat manufacturers, petition in behalf of certain,
presented - - - - - - 147
Hewson, John, and others, petition of, piesented
and read - - - - - - 20!
Hillhouse, Mr., of Connjecticut, remarks of^on
the Judiciary system - - - - 108
Hobby, John, a bill to authorize his discharge, re-
ceived ------- 75
referred -------W
reported and lost - - - - H«
I.
niinois and Oubache Land Company, petition
from, presented and rejected - - . 199
Indians, a bill regulating trade with, reported • ^^
amended ------- 1^9
recommitfied ^
reported and passed ^^
a bill respecting trading-houses with the, re-
ceived - - - - - - - 296
passed - - - - - --29?
IngersoII, Jared, and others, lawyers, memorial
from, respecting the Judidkl system, pre-
sented - - - - - -•!»
INDEX.
VI
Senate Proceedings andt Debates,
J. Page.
Jackflon, Mr., of Georgia, remarks of, on the Ju-
diciary system - - - - 46, 18^
on internal taxes 24i
Jones, Thomas K., a bill for the relief of, received
and referred 254
reported 256
passed 258
Judiciary, memorial from members of the Phila-
delphia bar respecting the, presented - 152
motion to repeal the act of the last session
respecting the ..... 23
under consideration - - 25, 46, 59, 75, 99, 116
committee appointed to bring in a bill - 145
bill reported 146
under consideration - - 147, 150, 154, 160
bill passed 183
bill for the better organization of judicial
courts, reported ----- 205
recommitted - - - - - -251
reported 252
under consideration ----- 256
passed - - • - - • • 257
amendments received - - . . 274
acted*upon ' 291
L.
Lands, a bill authorizdng the President to convey
certain, reported - - - - - 189
passed 193
a bill respecting grants of, for military ser-
vices and for the United Brethren, re-
ceived --.-.-- 205
referred 207
reported --..--- 254
recommitted .-.--. 258
reported 260
passed 262
committee appointed on Western - - 255
committee appointed on Tennessee - - 256
report made -...-. 260
agreed to -? 263
Laws of the United States, resolution to furnish
members with copies of the laws of the 6th
Congress, received - - - - - 19
concurred in ------ 74
Learning, a bill for the encouragement of, by se-
curing copyrights, introduced - - 202
referred - 203
reported 206
amended and passed - - - - - 251
Lehman, Lyon, a bill for the relief of, received
and referred ...... 184
amended and passed - - - . . 187
Library of Congress, a bill concerning, received - 21
axncnded ------.24
passed -------42
disagreement to the amendment received - 76
further action 99, 145
Light-houses, a bill for erecting and rebuilding,
on Gurnet Point, Newcastle Island, and
Lynde's Point, received - - - 196
amended --..... 202
passed --..... 203
disagreement received - - - - 251
adjustment - 252
Lynde*s Point. (See lAght-Aousea.)
M.
Meil, United States. (See Post Office,)
Page.
Maine, a bill to alter the time for holding district
court of, received - - . . . 201
referred to committee on judicial coui^ts - 202
committee discharged .... 298
Marentille, Abraham D. B., a memorial of, pre-
sented 186
Marine Corps, resolution respecting the expenses
of the, offered 254
adapted - - 260
estimate received 261
Marshals, a bill for the relief of certain, received
and referred 199
reported • 250
passed 252
Maryland, a bill authorizing the collection of fees
due the officers of the courts of, received - 186
referred 187
reported 192
lost 194
Mason, Mr. J., of Massachusetts, remarks of, on
the Judiciary system - - - - 31
Mason, Mr., of Virginia, remarks of, on the Ju-
diciary system ----- 59
on internal taxes 235
Messages of the President, one at the opening of
the session ...... n
one respecting the City of Washington - 42
one relating to expenses of the French Con-
vention - 46
one respecting Indians .... 150
one respecting military lands - . . 189
one respecting marine hospitals - - - 191
one relating to military expenditures - - 158
one respecting the Barbary Powers - 189, 194
one in relation to Georgia limits - - 293
one concerning the Commissioners under the
British Treaty 293
others - - - -20,192,207,208,266
Military Establishment, a bill fixing the Peace
Establishment received .... 146
amendments reported - - - - 185
adopted - • 186
bUl recommitted 192
again reported - 194
passed ....... 195
disagpreement received - - - - 106
other action - - - - - 197,198
resolution laid on the table respecting the ex-
penses of the 208
Mint, a bill respecting the, received - - - 291
third reading negatived .... 293
Mississippi Territory, a bill extending the frank-
ing privilege to delegate from the, and pro-
viding for his compensation, received - 20
referred, with a letter from the delegate - 151
reported .------ 185
passed ------- 187
Morris, Mr., of New York, remarks of, on the Ju-
diciary 36,76,180
' on Internal Uxes - . . . 210, 246
on public debt - - - 275, 280, 282, 283
N.
Naturalization, a bill to amend the act concerning,
received .--..- 198
amendments reported .... 200
recommitted ...... 204
amended ...-.-- 261
passed ...---- 268
vu
INDEX.
Vlll
Senate Proceedings and Debates,
Page.
Newcastle Island. (See Light'hoitsea,)
New Yorky^esolution of the Legislature of, respect-
ing amendment to Constitution received • 191
Northwestern Territory! a hill respecting the east-
em division of the, received ... 258
referred 269
amendments reported .... 268
consideration postponed .... 275
resumed 294
hill passed ' - 297
O.
Ogden, Mr., speech of, on the Judiciary system 171
Olcott, Mr., of New Hampshire, remarks of, on the
Judiciary system ..... 75
P.
Paolo Paoly, a hill for the relief of, received and
referred 253
reported 257
passed - 26^
Post Office and post roads, a motion made re-
specting the conveyance of the mails • 198
agreed to, and committee appointed pursuant
thereto 199
their report 208
a hill further to alter and establish certain
post roads, received and referred • • 253
reported --..--. 261
amended •> 264
passed ....... 267
disagreement received .... 274
other action - •' - 275,291,302,303
President elected pro tern .... 9
Public Debt. (See Debt,)
Public money, motion respecting the safety of the,
made ....... 143
adopted 151
a bill providing for the safety of, reported - 200
fecommitted 202
reported 204
amended 206
passed . - 207
amendments received • - . .261
referred > . . . , . . . 262
other action ...... 268
R.
Receivers of public money and property. (See ■
Public Money.)
Reporters, resolutions passed respecting - - 22
Revenue collectors, a bill concerning the compen-
sation of, received 267
referred 268
reported - - 275
passed 298
Ross, Mr., remarks of, on the Judiciary - -161
on internal taxes .... 209,245
Rules, committee appointed to revise, for the use
of the Senate - ... 195
Russell, Albert, and others, petition of, asking
the renewal of certain land warrants, pre-
sented and referred . . . -196
committee discharged .... 298
8.
Salaries of certain officers, a bill to augment the,
received ---... 205
referred ---.-.. 207
reported 253
passed 257
Page.
Seamen, a bill to amend the act for the relief of
sick and disabled, received . - - 261
• referred - . . . - - - 283
amended - - . . --•303
passed - . . . . . .
Senators present at the opening of the session,
list of 9
Skipwith, Fulwar, a bill for the relief of, receired S64
referred - . . .'- .-265
reported - 257
Sloan, Philip, a bill authorizing the payment of a
certain sum to, received . - - 15S
postponed jgn
Snowden, Jonathan, petition of, read and re-
ferred 254,255
Stevens, Ebenezer, merchant, petition 0^ pre-
sented and referred . - • • 193
committee discharged . - - • 266
St. Mary river, petition respecting the navigation
of, read and referred - - . • 265
leave given the petitioners to withdraw • 2S6
Stone, Mr., of North Carolina, remarks of, on
the Judiciary system - ... 69
Symmes, John Cleves, petition from, read and re-
ferred - . - - ... 274
report made 296
read and adopted . . ... 299
a bill concerning purchasers of lands from,
reported S67
passed 395
T.
Taxes, a bill to amend the act laying a direct tax,
received . - . . - - 187
referred - . . - ... 188
reported - . . . ... 1^
passed - 196
disagreement received . . . . 197
adjustment - . . ... 196
a bill to repeal the act concerning internal,
received - * . . . . 20S
referred - - - . . . . 9Ci3
reported - • . . . . . 3IM
under consideration - - 205, S06, 208, ^
estimates of interest .... 316, S3
bill passed 250
petition of certain collectors of, presented • 250
Tennessee, a bill for the better organization of
the courts of, introduced . - . . 197
referred 198
committee discharged - ... - 29@
Thomas, John, and others, aliens, petition of, con-
cerning the laws of naturalization, pre-
sented 19§
Tingey , Thomas, and others, vestiymen of Wash-
ington parish, received and read - - ^
acted upon . - - ... 11^
Tousard, Lewis, a bill for the relief of, received - ^
passed > . > . . ..S$(
Tracy, Mr., of Connecticut, remarks of, on the
Judiciary System - > ... 51
on internal taxes - . . . - SK
Treasurer's report received - . . . II
Treaty with Great Britain, received - - . 3C^
passed - . . > . ..303
Tunno, Thomas, and others, merchants, memo-
rial of, presented and referred to the Sec-
reUzy of State l^
report - • 1^
IX
INDEX.
Semite Proceedings and Debates.
U. Page.
United Brethren, Society of, b bill regulating
grants of land for military services and for
the, received ------ 205
referred 207
reported 264
passed 262
V.
Vermont, State of, resolutions of the Legislature
of, received and read - - - - 190
a bill concerning the district court of, intro-
duced and referred .... 259
amended ------- 265
lost 268
Virginia, a bill declaring the assent of Congress
to an act of the General Assembly of, re-
ceived ------- 252
referred 253
reported 253
passed - - - - - - - 257
W.
Washington City, a bill to abolish the board of
• commissioners of, received and re&rred - 264
reported ------- 266
passed 292
amendments received and agreed to - - 300
a bill to incorporate the citizens of, received 294
referred 298
passed - ...-.- 303
Wells, Mr., of Delaware, remarks of, on the Ju-
diciary System 132
White, Mr., of Delaware, remarks of, on the ap-
portionment bill 43
on the Judiciary System - - - - 1 17
Widows and orphans, a bill for the relief of, re-
ceived, referred, and reported - - - 266
amended and passed 292
Willard, Simon, letter from, respecting a clock,
read and referred ----- 18
report made ------ 161
resolution to pay him a certain sum - • 254
Willing, Francis, and others, petition of, asking
redress for injuries inflicted on their com-
merce, presented and referred - • 184
Wooster, General, a bill for erecting a monument
to, introduced and referred - - - 297
Page.
Wooster, General, bill reported . - . 299
Wright, Mr., of Maryland, remarks of, on the
Judiciary system - - - 110^ 137
on the public debt 279
Y.
Yeas and Nays, on the passage of the apportion-
ment bill 46
on a motion respecting the Judiciary system 145
on the Judiciary bill - - 147, 150, 160, 183
on the bill for the relief of Lawrence Erb - 146
on the bill for the relief of Samuel Dexter - 185
on the bill for the relief of Lyon Lehman - 187
on the bill for allowing a drawback on cer-
tain duties -..-.- 195
on the bill for the Peace Establishment - 195
on the bill for regulating trade with the In-
dians 201
on the appointment of a committee respect-
ing judicial courts 200
on the bill respecting judicial courts - 256, 257
on the tax bill 206, 250
on the naturalization bill - - - - 252
on the bill respecting the salaries of certain
officers 255, 257
on a resolution respecting lands in Tennes-
see -..-'..- 263
on the bill respecting post roads - • 267
on amendments to the bill concerning public
debt 271, 272, 281
on its passage 291
on the bill for the District of Columbia 273, 297
on the bill for widows and orphans - - 292
on the biU for T. Fowler - - - - 292
on the bill concerning the Northwestern Ter- ....
ritory 294, 395, 296
on the naval appropriation bill - - - .301
on the bill for Washington City, D. C. - 303
on the bill for the relief of seamen - • 303
on proposed amendment to the Constitution, 304
Z.
Zane Isaac, petition from, presented - - - 221
bill for his relief, received - - - - 207
referred' - - - - - - * 208
reported 209
251
INDEX
TO THE PROCEEDINGS AND DEBATES OF THE FIRST SESSION OP THE
SEVENTH CONGRESS.
HOUSE OF REPRESENTATIVES.
A. Page.
Addison Anthony, petition of, read and referred
to the committee on the hill for the Dis-
trict of Columbia - - - -429, 430
Adjournment, motions for the - - - 993, 1230
takes effect 1296
Alexandria, D. C, petition from the inhabitants
of, respecting taxes, received - - - 342
referred to the committee on the bill for the
District of Columbia .... 343
memorial from, respecting the goTemmeniof
the District 463
one from the Mayor of, on the same subject, 1131
Alston, Mr., remarks of, on the augmentation of
salaries 1090
Appomattox river, a bill declaring assent of Con-
gress to an act of Virginia respecting the,
presented - - " - - - - - 1128
passed .------. 1131
Apportionment of members, resolution respect-
ing the, moved and debated - - 325, 333
bill for that purpose reported ... 335
under consideration - - 337, 365, 377, 392
passed ...---. 404
Appropriations, a hill making them lor Govern-
ment, presented - * - - - 421
passed 1246
amendments received and agreed to - - 1253
bill making partial, presented, ... 482
passed - - - - - - - 493
another presented ..... 1093
passed - 1095
a bill making them for the expenses of the
French Convention, presented • - 998
amended --....- 1075
passed 1076
a bill making them for expenses of a nego-
tiation with Great Britain, received - - 1086
passed 1126
a bill making them for the Navy, presented 1 164
debated 1198
passed ....... 1203
amendments received and agreed to - - 1254
a bill making them for the Military Estab-
lishment, presented - • - - 1212
amended - 1243
ordered to the third reading ... 1246
a bill making them for the expenses of the
convention with Great Britain, presented 1252
passed 1253
Ash, George, petition of, presented and referred 470
Attorney General, committee instructed to make
provision for extending the franking priv-
ilege to the 327
Ayer, Elijah, a letter respecting the claiinBoi;Teid
and referred to the committee on the peti-
tion of Caleb Eddy - ... 493
B.
Bacon, Mr., remarks of, on the apportionment bill U
on the judiciary bill - - - - 668, 985
on the tax bill - - ' - - • ^ 10!^
on the affairs of the Northwest Territory • 111!
on a resolution relating to the French for*
vette Berceau -' - ... 1156
Balances, resolution respecting, moved • - 47(
debated - - - - " " * f^
referred - - - - • . - • 59^
report made - - - - - • Wi
considered m,\m
Baltimore, memorial of sundry citizens of, respect-
ing French spoliations, read and referred iSi
Barbazy Powers, resolution concerning the, laid
on the table ^
debated - - - - ... 32?
committee appointed pursuant thereto • 3:^
letters on the subject, received and referred
and referred to the same committee • ^
Bayard, Mr., remarks of, on the apportioiuoent
bUl .... 377,392,3W,4'>1
on import duties - - - - 437,44:
on internal revenue - - - - 447, 4o?
on the judiciary system 479, 610, 618, 603, ^■
l«4,l«
on French spoliations ... 1007, ICI*
on affairs of the Northwestern Territory • H*
on the resolution respecting the con'otte Ber-
ceau 1134, »«
onpubUcdebt - - 1171,1181,1184,11^^
Beatty, Charles. (See John TYavers.)
Beckley, John, elected Clerk - - " .' ^^^
Bell, James, J. Sawyer and others, report on their
petitions - - - - - • *»
Berceau, corvette, resolution respecting the, mor-
ed and debated ... 1133, Hf;
agreed to ^[^
another moved - - - - - • I**
message and papers on the subject received
and referred - - - - - • H"
Books and maps, committee appointed respecting!
purchased by Congress - - * " !li
their report * ^
committee appointed to purchase
resolution respecting them referred to Coo-
mittee of Commerce - - ' ' 7:
Bowie, Walter, takes his seat - - " ' ^!^
report on his credentials - - . • Iv^
XUl
INDEX.
XIV
Hmue Proceedings and Debates,
Page.
Briiff, Thomas, dentist, petition of, read and refer-
red to the committee on the petition of L.
Dupre - - 416
leave given to withdraw .... 483
C.
Caldwell, Elias B., Cl^rk of the Supreme Court,
petition of, read and referred ... 353
Chaphun, resolution respecting a, received and
concurred in 312
one appointed ...... 316
Clax ton, Thomas, elected Doorkeeper - - 310
letter! from him, asking further assistance,
read and referred ..... 313
request g^nted 346
Clerk of the House, committee appointed to ex-
amine into the office of the - - - 1 155
their report - 1162
Clerks, resolution passed, requesting information
respecting ...... 1077
information received 1097
statement received from the Register, respect-
ing the hire of ..... 1157
Clock for the use of the House, the Clerk directed
to procure a - - - - - - 1254
Clopton, Mr., remarks of, on the Judiciary hill - 958
Coins, committee appointed on the subject of - 421
a supplementary bill regulating foreign, pre-
sented - - 430
passed . > . . . . . . 462
amendments received and agreed to - - 1250
Collectors of duties, a bill establishing the com-
pensation of, presented - - - - 1 197
debated 1203
passed 1212
amendments received and agreed to - - 1252
a statement of the emoluments of customs - 950
Columbian Library Company. fSee Georgetown.')
Commerce and seamen, in the Mediterranean, a
bill to protect, reported «... 405
considered . . . ^ . . 432
passed ....... 433
amendment received and agreed to - 472, 474
Committees, appointment of - - - - 312
Compensation of members, the fubfect under con-
sideration ...... 1077
a bill to regulate the, presented ... 1094
passed 1191
report on the reduction of- - - - 1128
Connecticut Reserve, petition concerning the,
read and referred .... 376, 876
rejected 997
Convention with France, committee appointed to
prepare estimate of the expenses of the '- 415
letter containing an estimate received - - 419
(See, also. Appropriation*,) *
Constitution, amendments received from New
York, and laid on the teble ... 509
others from North Carolina read and refierred 629
others laid on the toble .... 603
debated r 1285
passed 1293
non-concurrence received . . • . 1296
Cooper, Thomas, petition of, read and postponed
to the next session . . . « 1251
Copper mines of Lake Superior, reiolntion re-
specting the, laid on the table - - 1018
passed ...... 1074
Copyright. (See Learning*)
Page.
Coulon, Paul, bill for the relief of, presented - 1161
passed 1163
Courts of United States. (See Judiciary.)
Coxe, Daniel, a bill for the relief of, presented - 463
under consideration .... 476, 522
rejected - 992
Cutler, Mr., remarks of, on the Judiciary - -. 862
D.
Dana, Mr., remarks of, on impost duties - - 459
on the Judiciary system ... 479, 887
on French spoUations - - ' - 1005, 1011
on the tex bill 1047, 1070
on a resolution respecting the French cor-
vette Berceau ..... 1151
on the Naval appropriation bill ... 1201
Davis, Mr., speech on the Judiciary system - 554
on the tax bill ...... 1052
Dawson, Mr., remarks of, on taking his seat - 422
return of his election received ... 424
speech on the Judiciary bUl - - - 762
on the bill to augment certain salaries - 1087
Debt, public, a bill for the redemption of, pre-
sented 1161
debated 1164, 1175
passed - 1192
amendments received and agpreed to - - 1247
Debt, debate on the subject of imprisonment for 483
Delaware river, memorial concerning the piers in
the, road and referred .... 465
report made ...... 1046
bill presented 1046
Dennis, Mr., remarks of, on the Judiciazj 831, 1220, 1223
on internal texes .... 1015, 1064
Dexter, Sitmuel, letter from, read and referred 361, 382
report made and committee appointed - 417
bill for his relief reported ... - 420
passed 473
amendments received .... 495
agreed to 1133
Disbursement. (See PubUe Money.)
District of Columbia, a bill for the government of
the, reported 463
under consideration ... - - 1095
postponed .-.--. 1096
a resolution requesting the Secretary of the
Treasury to furnish an estimate of the ex-
penses of the -* - - - - 1 126
estimate received - - - - -1157
an additional bill for the government of, pre-
sented 1247
passed .-.-.-- 1251
amendments received and agreed to 1295, 1296
Districte, a bill for the relief of certein, presented 996
passed 997
a bill to esteblisb certein, passed - - 1191
amendmente received and agreed to - - 1255
Doorkeeper and assistent elected ... 310
Drawbacks, a bill to amend the act coiioeming»
presented .-..-- 347
amended ------- 1086
passed -----.- UW
a bill to allow, on goods exported to New Or-
leans, presented . . . - • 445
amended ...--.- 467
recommitted - - * - - - - 469
reported --..-.- 481
paawd 492
XV
INDEX.
XTl
House Proceedings and Debates,
Page.
Duchouquet, Francis, a bill for the relief of, pre-
sented 989
passed 993
Dufour, John James, bill for the relief of, received 1018
read twice , - 1026
committed 1127
reported and passed .... - 1253
Dupre, Lewis, memorial from, stating his discov-
ery of perpetual motion, read and refer-
red 376,377
leave given him to withdraw (he petition - 470
Duties, resolution respecting, on imports and ton-
nage, laid on the table .... 325
debated 329
a bill to amend the act passed - - - 1191
amendments received and agreed to - - 1255
resolution requesting the Secretary of State
to furnish a statement of, paid into the
British ports 351
his report - - 406
resolution respecting, on salt, moved and
negatived 419, 461
debate on the subject of import duties 434, 446,
468
resolutions offered respecting duties on stills,
&c .494, 1086
report made on that subject ... 989
resolution declaring it inexpedient to remit
said duties 1128
E.
Electors for President and Vice President, resolu-
tion respecting, laid on the t-able - - 472
Elmer, Mr., remarks of, on the internal tax bill - 1024
Enterprize, schooner. (See Captain Sterrit,)
Erb, Lawrence, a bill for the relief of, received - 445
passed -.----- 470
Eustis, Mr., remarks of, on the Judiciaiy bill - 963
on French spoliations .... 1008
F.
Fearing, Mr., remarks of, on afiairs of the North-
western Territory - - - -1103,1117
Fisheries, a bill for the relief of persons concerned
in certain, presented .... 568
passed 988
Fletcher, Sarah and Jane Ingraham, petition of,
read and referred 316
report made, and committee appointed to
bring in a bill for relief of widows and or-
phans - -
(See "Wxdofwa and Orphans,)
Fortifications, committee appointed on a reso-
lution respecting
their report ------
Fowler, Theodosius, bill for the relief of, pre-
sented 1133
passed 1162
French vessels, resolution respecting the capture
of- 434
a copy of instructions respecting, received - 445
French Spoliations. (See Spoliations.)
Fugitives, a bill respecting, reported - - , - 336
debated - 423
rejected 425
Funeral expenses, resolution respecting, moved
and referred 1097
reported 1118
O. Pige,
Gardiner, John^ the memorial o^ read and refer.
1163
406
467
red
n
Georgetown, District of Columbia, petition of sun-
dry inhabitants of, read and referred * 473
petition of the Corporation of, read and re-
ferred - - - - - - ■ 1093
a petition respecting the Columbian Libraij,
read and referred 1188
a bill to incorporate the said Library, pre-
sented - - - - - - - 1156
Georgia, resolution respecting documents relating
to the mUitia claims of - - - -1131
papers relating to the above, received - • 1247
motion respecting the limits of, made and de-
bated - 1295
Giles, Mr., remarks of, on the Judidaiy system - 511,
679,1219,1221
on affairs of the Northwestern Territory 1 121, 1134
on a resolution respecting the French cor-
vette Berceau - 1140, 1142, 1145, 1153
Goddard, Mr., remarks of, on internal revenue • 457
on the Judiciary system - . - 721, 12!6
on the bill to augment certain salaries - 108^
on affairs of the Northwestern Territory • lllSy
1118
Gregg, Mr., remarks of, on the Judiciary bill - S75
on French spoliations - - - • 1006
Griswold, Mr., remarks of, on the accounts of T.
Pickering - - - , - - • 3H
on internal revenues - _ - - - • 450
on French spoliations - - - - 1006
on the internal tax bill - - -1026,1037
on afiairs of the Northwestern Territory -IKM,
m
on a resolution respecting the corvette Ber-
ceau 1134,1143
on public debt - - 1167,1169, 1176, llBi
on the Judiciary system - - - • 1217
on disbursement - - - - - 1255
Gunpowder, hats, types, &c., report on the peti
tion of sbndiy manufecturers of, -
4«
H.
Hasting^, Mr., remarks of, on the Judiciary sys-
tem
Hembold, George, memorial of, asking patronage
for painting, engraving, &c., read and re-
ferred - ■
Hemphill, Mr., speech of, on the Judiciary bill •
Henderson, Mr., remarks of, on the Judiciary sys-
tem 623,
Hill, Mr., remarks of, on the Judiciary bill •
Hobby, John, petition of, read and referred to the
Secretary of the Treasury - •-
his repdrt
biU for his relief presented
debated - - - - - - •
passed - - - - - - ■
Holland, Mr., remarks of, on internal taxes
Howard, S. Harvey, and others, officers of the
courts of Maryland, bill for their relief, pre-
sented
amended - - - - • * *
passed * - - - - - - •
Huger, Mr., remarks of, on hitemal revenue
on taxes * *
on the Judiciary bill - - " ' qq
on naval appropriations - - ^^^^
880
471
533
1213
859
aia
419
420
421
m
473
499
451
1027
1200
XVll
INDEX.
XV HI
House Proceedings and Debates,
Page.
Hunter, Naraworthj, committee appointed to ex-
amine his credentials - - - - 313
report made ------ 333
debated 344
a bill extending him the franking privilege,
reported ------
passed --.•---
information of his death received
resolution respecting his funeral expenses - 1118
Hunt, Memucan, and oihera, petition of, respect-
ing Tennessee lands, read and referred •
report made ------
consideration postponed . - . -
347
348
997
426
1076
1254
I.
Illinois and Oubache Land Company, memorial
of the, presented and referred • - 995
committee discharged - - - - 1163
Indiana, letter from the Governor of, respecting
land claims, presented and referred - - 797
committee discharged - - - - 1263
* petition of James Johnson and others, re-
specting chancery poiwers in, read and re-
ferred - - 1131
Indians, accounts of trading-houses, received and
referred - - 465
a bill concerning trading-houses presented
and passed ------ 1249
a bill to regulate trade with thu, received - 1057
passed - - - ' - - - - 1077
Ingraham, Jane. (See Sarah Fletcher,)
Insurgent, report on the claims of the represent-
atives of those who were on board the - 434
resolution requiring information respecting
the loss of that vessel and the Pickering - 474
papers concerning them received - - 476
Internal revenues. (See Revenue.)
J.
Jefferson Academy, a petition from the trustees
of the, read and referred - . . 497
Jones, T. K., report on the petition of, - - 422
under consideration ----- 464
recommitted ------ 465
another report made ----- 995
bill presented 998
passed .---.-. 1154
Judiciary, resolutions respecting the, moved and
debated 362
referred 364
a bill respecting the organization of courts,
received and debated - 476, 510, .523, 546,
569, 603, 629, 665, 721, 746, 598,814,854,950,
951, 958
passed ..---'.- 982
petitions from Philadelphia respecting the
late act, read and referred 483, 522, 568, 629
report made ------ 989
petition from New York on the same subject 582
one from New Jersey . . - . 545
a bill to amend the, received and referred - 1160
report made • 1164
debated - - - 1205, 1213, 1216, 1232
passed 1236
K.
Kilty, William, memorial of, presented and re-
ferred 326
report made 433, 434
L. Page.
Lands, resolution respecting warrants for, re-
ceived - - - - - - - 318
committee appointed on that subject - - 319
their report ------ 353
committee directed to bring in a bill - - 475
a bill concerning grants of, for military ser-
vices, and for the United Brethren, pre-
sented - - 496
amended - - 1086.
passed - • - - - - - 1093
a plan of Northwestern lands, received and
referred 349
committee appointed to maJce inquiries con-
cerning lands reserved for schools in the
Northwestern Territory - - - - 464
a bill to prevent intrusion on public lands,
presented ------ 421
recommitted ------ 474
letters respecting lands near military posts,
received ------ 569
committee appointed on the claims to land
held by settlers at Detroit - - - 989
a bill authorizing the President to convey
certain, received * - - - - - 950
passed ------- 1076
Lapsley, Samuel, the claim of the heirs of, re-
ferred to Committee of Claims - - 420
Laws United States, resolution to furnish the
members with 343
Learning, a biU for the encouragement of, by se-
curing copyrights, received - - - 1129
passed - - - - - . - - 1249
Lee, Peter, free negro, petition of, presented, and
motion to refer it negatived - - - 343
Lehman, Lyon, a bill for the relief of, presented - 469
passed ------- 476
amendments received - - - - — 497
agreed to - - - - - - - 986
Library of Congress, resolution respecting the, re-
ceived 348
debated 349
disagreed to ----- - 352
a bill respecting the, reported - - - 352
passed .---..- 354
amendments received - - - - 419
further action - - - - 421,422,426
adjustment - 430
Light-houses, a bill for erecting and rebuilding
certain, amended - - - - - 986
passed 988
amendments received - - . - 1077
action thereupon - - - - -1127
Loan Office certificates, resolution respecting,
moved and rejected - - - - 469
another moved, and referred to the Commit-
tee of Claims 470
their report - 1016
Lowndes, Mr., remarks of, on the internal tax bill 1023
on a resolution respecting the corvette Ber-
ceau 1144
M.
Macon, Mr., speech of, en the Judiciary bill - 706
on affairs of the Northwest Territory - - 1 1 16
Maine, a bill respecting the district courts of, pre-
sented 1018
passed - - ' 1026
Marine Corps, resolution respecting the, laid on
the table 1018
XIX
INDEX.
X2
Hotise Proceedings and Debates,
Page.
Marine Hospitals, report on the subject of - 721
Marshals of certain districts, a bill for the relief of
the, presented 996
passed --«---- 997
Maryland, letter from the Governor of, respecting
the City of Washington, received - - 406
a bill for the relief of the officers of the courts
of, presented ------ 473
passed - ' - - - - - - 494
McCashen, James, and others, petition from, re-
lating to lands bought of J. C. Symmes,
read and referred 813
committee directed to bring in a bill for the
relief of purchasers of lands from J. C.
Symmes 1094
McDonald, John, petition of, asking to be appoint-
ed Librarian, presented and referred - 312
Mediterranean trade, debate on the subject of - 417
(See, also, Commerce, &c.)
Members present at the opening of the session - 309
order to furnish them with newspsfpers - 311
Merchants and manufacturers, report made on
the petition of a number of - - - 1194
Message, the annual, received - - - - 813
under consideration 325
one respecting the contingent frind - - 797
one respecting the corvette Berceau - - 1194
one transmitting a copy of the British con-
vention ------- 1249
othcre 798, 1119, 1211
Messonnier, Henry, a bill for relief of, presented
and postponed ----- 1264
Militia, a supplementary bill to the act respect-
ing, presented ----- 483
Military Establishment, a resolution to reduce
the, laid on table - - - - - 352
agreed to, and committee appointed - - 354
o^er resolutions referred to committees - 405
made report 467, 1002
resolution respecting a Peace Establish-
ment moved ------ 348
agreed to- - - - - - - 349
a bill to fix the above, presented - •- - 417
debated 426, 427, 430
passed - - 431
amendments received . . - . 989
agreed to 994
Military services. (See United Brethren.)
Milledge, Mr., remarks of, on the Judiciary bill - 794
Mint, resolution respecting the, laid on the table 472
debated 484
referred to committee ... - 492
a bill presented 11 28
debated 1237
recpmmitted 1242
passed 1247
Mississippi Territory, committee appointed to
report whether the, is entitled to elect a del-
egate - -■ 318
report made -.-... 333
committee appointed to extend the franking
privilege to the delegate . . - 343
bill reported 347
passed ------- 348
amendments received . - . - 497
agreement ------ 509
petition received from sundry merchants of
the, respecting duties . - . - 1057
Pagt
Mitchell, Mr., remarks of, on the apportionment
bill 385
on French spoliations - - 1004, 1010
Morris, Mr. T., remarks of, on internal revenues 449
on the Judiciary bill - - - - • 564
on the tax bill - - - - - - 1065
on the bill to augment certain salaries • 1099
Mott, Mr., remarks of, on public debt - - .1164
Mumbower, Henry, petition o^ read and referred 31S
N.
Naturalization Laws, petitions respecting the,
read and referred to the committee on
that subject - - 315, 361, 375, 404^ 6QS
committee appointed on a resolution respect*
ing the - - - - ---SB
bill reported - - - - - - 464
amended - - - - - - - 986
recommitted - - - - - - 988
passed - - - - ... 993
amendments received - - - • 113S
referred - - - - - - - 1133
other action - - - « - 1155, 1157
Navy United States, committee appointed on naval
affairs - - - - - - . 3S6
report made - - - ... 483
recommitted - - - - - - 493
amendatory report made - • . ■ 993
report on naval sites - - - - • lil9
Nicholson, Mr., remarks of, respecting T. Pick-
ering * - - - - - . 314
on the Judiciary system - 521, 798, 814, ISl?
on affairs of the Northwest Territory - - 1105
on a resolution respecting the French cor-
vette Berceau - - - - - 1139
on public debt - - - - - - UTi
on disbursement - - - - - 1267, W8
Northwestern Territory, the laws of the, and In-
diana, received - - - - - 422
an act of the Legislature of, presented • 427
under consideration - - - - 462, 465
non assent - - - . - - 466
petition of sundry inhabitants of, read and
referred - - - - -465,471
- resolution respecting the cenBUs of the, laid
on the table - - - ... 468
referred - - - - - - - 470
report made - - - - - - 9S
a petition respecting the purchase of lands
in the, read and referred - - 508, 509
report made - - - ' ' , ' ^^^^
a bill authorizing the conveyance of lands in
the, presented - - - - - 509
petition of inhabitants asking to be admitted
as a State, read and referred - . • 814
copy of the report - - - - • 1097
under consideration -
a bill for that purpose ordered -
presented - - -
debated - - .
. . IIlS
.1186
. .11»
1165, IlM
. . 1161
amendments received and agreed to - - ^^
petition asking land for the erection of a
college, read and referred
another petition . . . • ■
•Paolo Paoly, a bill for the relief of, presented -
passed
949
1017
I IS!
1141
Parkinson Rev. William, elected Chaplain - ^''
Pay of members. (See Compensation^
XXI
INDEX.
xxu
House PTXHxedings and DebcUe$,
Page.
Philadelphia^ a petition of the aBeeasors of taxes
in, presented and referred ... 422
report *on the petition of sundry mercha^^ts
of, made and agreed to - - - - 462
Pickering, Timothy, resolution moved respecting
the accounts of - - - - - 313
debated 319
Pickering brigantine. (See Insurgent.)
Plater, Mr., remarks of, on the Judiciary bill - 938
Post offices and post roads, committee appointed
on the subject of a bill further to alter and
establish certain post roads, preeented - 1046
recommitted ...... 1094
an amendatory bill reported - - - 1119
amended - - 1131
passed ....... 1141
amendments received - - - -1212
other action .... 1216, 1242
adjustment ...... 1255
Printing for Congress, committee af^inted on
the subject of, ..... 335
their report .-.--- 336
Public Debt (See DtbU)
Public money, resolution respecting the disburse-
ment of, moved ^ 319
committee appointed after debate - - 324
report laid on the table .... 1251
a bill for the better security of, received . - 1094
referred .--...- 1133
reported ....... 1164
passed ....... 1174
a bill to provide for the due application o(
presented -1157
postponed to next session .... 1254
Quarantine laws, committee appointed on a reso-
lution respecting the - - - >-415
petition from sundry importers of cotton,
respecting the, read and referred to the
above committee 991
R.
Randolph, Mr., remarks of, on the apportionment
biU 366, 396
on Judiciary bill .... 519, 650
on internal taxes - - • - - ^ 1032
on a resolution respecting corvette Berceau 1137
on public debt 1165, 1168, 1170» 1173, 1176,
1177, 1181, 1183
on the naval appropriation bill - - - 1199
on the disbursement of public money - - 1283
Receivers of public money. (See Public Monty ^
Revenue laws, debate on the - - - - 317
resolution respecting internal revenue moved
and debated .----. 447
Roxborough, Alex., report on the petition of, - 1025
Rules and orders, committee of, appointed - 311
their report 351, 409
Rutledge, Mr., remarks of, on the apportionment
biU 392, 394
on import duties - - - - 434, 438
on internal revenues ..... 445
on Judiciary system - . - 610, 734, 746
on French spoliations .... 1009
8.
Salaries, a bill to augment certain, presented • 492
under consideration - 1077, 1083, 1087, 2019
Sands, Comfort, resolution respecting claim of^ - 1195
committee appointed pursuant thereto - 1197
bill for his relief presented - - - 121 1
•
Page.
Sawyer, Isaac, (See James BellS)
Sayre, Stephen, memorial of, read and referred to
the Committee of Claims ... 864
leave given him to withdraw the petition - 1076
Seamen, a bill for the relief of sick and disabled,
presented 1142
debated - . - - - - - - 1163
amended ..--.-- 1164
passed 1174
amendment received and agreed to - • 1294
Sergeant-at- Arms elected - - ' - - - 310
Sinking Fund, report of the Commissioners of
the 336
Skipwith, Fulwar, a bill for the relief of, pre-
sented -.-...- 1164
passed ....... 1194
Sloan, Philip, a. bill for the relief of, presented - 466
passed - - 472
Smilie, Mr., remarks of, on the bill to augment
certain salaries ..... 1089
Smith, Mr. S«, remarks of, on the apportionment
biU 393,397,400
on State balances .... 501, 506
on the Judiciary system - - - 516, 846
on French spoliations - - 1003, 1014
on the tax bill 1068
Snowden, Jonathan, report on the petition of, '- 986
Southard, Mr., remarks of, on internal taxes • 1027 ,
Speaker elected 310
Spoliations, Spanish, resolution requesting infbi^
mation respecting, moved, and a committee
appointed - 415
Spoliations, French, petitions respecting, from cit-
izens of Baltimore, read and referred - 481
one from citizens of Philadelphia - - 483
one from merchants of Alexandria - - 509
one from New York, read and referred - 721
one from Connecticut .... 950
others 991, 1067, 1093
report made ...--- 1216
Standing Committees appointed - - - 312
Stanley, Mr., remarks of, on the Judidaiy bill - 669
Stenog^phers, motion made respecting - - 406
agreed to 407,408
Sterret, Captain, of the schooner Enterprize, com-
plimentary resolutions respecting, and his
crew, received ..... 364
referred .------ 417
report made --.--- 426
agreed to 470
copy of the resolutions .... 467
Supreme Court, petition of the Clerii of the, con-
cerning the safety of records, etc., read and
referred- ...... 363
Symmes, John Cleves, petition respecting lands
bought of, read and referred - - 313, 462
committee discharged .... 1253
petition from him, read and referred - - 424
a bill concerning purchasers of land from, re-
ceived 1249
passed 1263
T.
Tallmadge, Mr., remarks of, on the Judiciary bill 936
on the bill to augment certain salaries - 1090
Taxes, a bill to amend the act laying direct, pre-
sented 420
debated ....... 433
recommitted ...... 434
XXIU
INDEX.
xxiy
House Proceedings and Debates.
Page.
Taxes, an amendatory bill reported - - . 483
amended ------- 496
passed -.----. 497
amendments received .... 989
other action 991, 993
motion respecting internal, laid on the table 354
debated / 366
a bill to repe&l, presented .... 989
under consideration 1015, 1017, 1025, 1046, 1057
passed 1073
amendments received - - - -1119
agreed to 1129
committee appointed to make report respect-
ing the commissioners of, - - - 1002
report made .----. 1086
Thomas, Evan, and others, a committee appoint-
ed by the Society of Friends, memorial
from, read and referred ... - 404
Thomas, Mr., remarks of, on State balances - 998
Thompson, Mr., remarks of, on the Judiciary bill 546
Tousard, Lewis, a bill for the relief of, presented 1162
passed ....--- 1196
Travers, John, and Charles Beatty, a bill for the
relief of, presented - - - - - 1126
Treaty virith Great Britain, an order to print the 349
Tunno, Adam, and others, report on the petitions
of 609
U.
United Brethren, Society oi^ a bill respecting lands
for the, and for military services, presented 495
passed 1093
amendments received - - - - 1190
agreed to 1212
V.
Van Ness, Mr., remarks of, on the apportionment
bill 385
Van Rensselaer, Mr., remarks of on the appor-
tionment bill 391
Yarnum, Mr., of Massachusetts, remarks of, on
Judiciary system 971
on internal taxes ..... 1030
Vessels, copy of instructions issued to command-
ers of, received ..... 446
referred - - 463
Secretary of the Navy directed to send in-
formation respecting .... 469
information received ..... 472
resolution respecting them submitted - -1133
postponed - 1213
Virginia, a bill declaring the assent of Congress
to an act of the Assembly of, presented •> 1128
passed ....... 1131
W.
Washington City, a petition of sundry inhabit-
ants of, presented and referred - 342, 343
petitions respecting a bridge across the Poto-
mac received and referred '349, 422, 424, 427
report made and committee appointed to
bring in a bill 492
memorial and other papers from the Com-
missioners of, received and referred - 416, 426
resolutions respecting the Commissioners,
made and referred 481
report made ...... 1157
other resolutions respecting them - 482, 498
a bill to abolish the office, presented - - 1157
1194
Washington City, petition of inhabitants respectp
ing a canal along Tiber creek, pres^ted
and referred - . - . - .42s
a bill for opening a canal, presented - - 1076
memorial of the building committee, read
and referred - - - - - - 1(H5
petition respecting the police of, presented
and referred - - - - - • 1M7
petition from sundry Roman Catholics, re-
specting the erection of a church, read and
referred - 1096
another on the same subject, presented •1119
a bill to incorporate the inhabitants of, pre-
sented - - 115?
amended 1347
passed ... . - - • 1249
amendments received and agreed to - - 1394
a resolution directing the Postmaster Gene-
ral to establish a post office at - •1253
Widows and orphans, a bill for the relief of cer^
tain, presented - - - - -1190
amended - • - - - - • II98
passed - 1S03
amendments received - - - • 1347
agreed to- - 1349
Williams, Mr. R., remarks of, on State balances 503
on the Judiciary bill - - - - 530, 1319
on affairs of the Northwestern Territory • 1107
Wyoming controversy, report respecting the • 996
Y.
Yeas and Nays, on the report of the conmiittee
respecting the delegate from Mississippi - 347
on the apportionment bill - - - 403, 404
on rules concerning stenographers - • 408
on motions to reduce the duty on salt - 419, 461
on the bill concerning fugitives - . • 435
on the bill for the Military Peace EstabUsh-
ment - - - 427,429,431,990,994
on import duties .... 444, 461
on internal revenues 458
on amendments to the internal tax bill 1019, 1035,
1042, 1045, 1046, 1055
on its passage - 1073
on a resolution respecting an act of the Le-
gislature of the Northwestern Territoiy • 466
on a resolution respecting duties on stiUs, &c. 494
on the petition of John Carr - - • 496
on the Judiciary bill 518, 521, 951, 956, 981, 9«
on the bill for the relief of Daniel Coxe - ^
on the naturalization bill - - . . 993
on a motion for adjournment - . • 994
on a petition relating to the Wyoming con^
troversy 596
on the postponement of the bill for State
balances ^^^^
on the bill making appropriations for the
French Convention ... - 1075
on the bill to augment certain salaries 1085, 1093
on the bill to amend an act concerning draw-
backs .1096
on a resolution respecting the French cor-
vette Berceau - - - -1149,1152
on the bill to admit part of the Northwest-
em Territory as a State 1158, 1159, 1160, Hfil
on the bill for the redemption of public debt U^
^ 1189,1195
on the bill for the relief of Fulwar Skipwith H^J
1193
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